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THK 


Concept  of  Law  in  Ethics, 


THESIS  ACCEPTED  BY  THE  FACULTY  OF  CORNELL  UNIVERSITY 
FOR  THE  PH.  D.  DEGREE  IN  PHILOSOPHY. 


Ferdinand  Courtney  French,  A.  B.  (bkown) 

Fellow  in  the  Sage  Scliool  of  Philosophy  of  Cornell  University. 


PROVIDENCE,  R.  I. 

PRESTON  &  ROUNDS. 
i8q2. 


GIFT  or 


Digitized  by  the  Internet  Archive 

in  2007  with  funding  from 

IVIicrosoft  Corporation 


http://www.archive.org/details/conceptoflawinetOOfrenrich 


THK 


Concept  of  Law  in  Ethics, 


THESIS  ACCEPTED  BY  THE  FACULTY  OF  CORNELL  UNIVERSITY 
FOR  THE  PH.  D.  DEGREE  IN  PHILOSOPHY. 


Ferdinand  Courtney  French,  A.  B.  (b«own) 

Fellow  in  the  Sage  School  of  Philosophy  of  Cornell  University. 


PROVIDENCE,  R.   I. 

PRESTON  &  ROUNDS. 
1892. 


fi)T^ 


n^ 


*      «  «•  •    •  • 


Copyright,  1892, 
By   F.  C.  FRENCH. 


5«ur  bag  ©efe^  fann  un§  bie  grei^eit  gcben. 

Goeike. 
Romans  xiii.y  lo. 


4274J0 


CONTENTS 


CHAPTER  I. 
Jural  Aspects  of  Ancient  Ethics. 

PAGE. 

§  I.       Customary  Law,          .........  i 

§  2.       Written  and  Unwritten  Law,     .......  4 

§  3.       Law  and  Nature,         .........  5 

§  4.       Stoic  Law  of  Nature,          ........  6 

§  5.       Ethical  Application  of  this  Conception,             ....  8 

§  6.       Stoic  Doctrine  and  Roman  Law,         ......  12 

CHAPTER   II. 

Christian  and  Medieval  Ethics. 

§  7.       Tendencies  towards  Juralism  in  Christian  Ethics,             .         .  17 

§  8.       Thomas  Aquinas, 20 

CHAPTER  III. 

Modern  Ethics. 

§     9.     Beginnings  of  Modern  Ethics— Grotius,            ....  24 

§   10.     Hobbes, 26 

§  II.     Cudworth,  Locke,  Cumberland,         ......  30 

§  12.     Paley, 32 

§  13.     Kant, 34 

CHAPTER   IV. 

The  Moral  Law. 

§  14.     Forms  of  the  Concept, 38 

§  15.     Source  of  the  Moral  Law,           .......  42 

§  16.     Ends        "                   " <.  44 

§  17.     Motive, 49 

Bibliography,       ..........  50 


/-; 


(A 


^/^aX(</ 


CHAPTER    11 


§  I.  AJ^ST,  in  the  primary  sense  of  the  term,  is  a  rule  of 
human  action  prescribed  by  authority.  -  The  use  of  this  term 
to  express  the  order  of  nature  is  a  derived  one  which  became 
current  only  after  considerable  historical  development,  i  Even 
this  first-mentioned  usage  is  primary  only  in  a  relative  sense. 
^At  the  dawn  of  history  we  find  men  ruled  by  custom  rather 
than  law.  Clans,  tribes  and  village  communities  were  ruled 
by  institutions  which  mythology  might  explain  as  established 
by  the  gods,  or  by  the  ancestors  of  the  race,  but  in  either  case 
for  the  living  generation  they  were  a  fixed  body  of  rules  that 
could  not  be  infringed  without  incurring  on  the  individual 
and  on  the  community  the  severe  displeasuy^  of  the  gods, 
and  which  men  regarded  as  no  more  subject  t6  change  on  their 
part  than  the  paths  of  the  sun,  moon  and  stars.  History 
opens  with  this  reign  of  custom,  but  it  must  have  been  only 
by  a  long  evolution  in  prehistoric  times  that  this  '  cake  of  cus- 
tom '  was  established. -J  In  the  struggle  for  existence  among 
primitive  men  nothing  could  have  been  of  more  importance 
than  organization. 2  The  elimination  of  unorganized  groups 
by  their  better  organized  contemporaries  must  have  brought 
about  the  survival  of  those  customs  and  common  norms  of 
conduct  which  served  to  unify  each  group  into  ap  organic 
body.  It  was  of  little  matter  whether  these  customs  wett  such 
as  we  should  call  good  or  bad,  provided  only  they  brought 
the  individual  into  subordination  to  the  community,  and  en- 

1  So.  Holland,  Elements  of  Jurisprudence,  p.  15,  and  Zeller,  Ueber  Be- 
griff  und  Begr'Undung  der  Sittlichen  Gesetze,  Vortrdge  u.  Abkandnngen, 
Satnml,  p.  189.  Max  Miiller  points  out  a  possible  exception  to  this  in  the 
Sanskrit  /?/ta,  which  he  explains  as  meaning  originally  the  order  of  na- 
ture and  afterwards  being  applied  to  the  moral  order. 

2  Bagehot,  Physics  and  Politics. 


,  «  «  •  «        * 
"        c   «    c  •  c  c 


2  THE    CONCEPT    OF    LAW    IN    ETHICS. 

abled  the  latter  to  stand  together  as  a  unit  against  all  foes 
from  without,  y We  have,  perhaps,  an  illustration  of  the  pre- 
historic state  of  society  in  the  description  of  the  Cyclops  in 
the  Odyssey,  a  description  that  may  well  have  been  sug- 
gested to  the  poet  by  the  mode  of  life  among  some  alien 
and  less  advanced  people  :  ^ 

"They  have  neither  assemblies  for  consulta^tion  nor  judi- 
cial decrees,  .  .  .  but  every  one  exercises  jurisdiction 
over  his  children  and  wives,  and  they  pay  no  regard  to  one 
another."^ 

But  whatever  may  have  been  the  course  of  this  prehistoric 
evolution  of  institutions  and  ideas,  the  earliest  historic  pro- 
totype of  law  is  custom.  ^  Or,  if  we  may  extend  the  term  to 
this  pre-natal  state  of  the  concept,  we  may  say  that  custom- 
ary law  was  the  progenitor  of  positive  law.^  The  etymology 
of  the  word  law,  ''  that  which  lies  or  is  fixed  or  set,"  *  and  of 
similar  words  in  other  languages,  points  back  to  the  time 
when  laws  were  the  established  norms  of  immemorial  custom 
rather  than  the  commands  of  a  sovereign  authority.  The 
head  of  the  tribe,  or  the  village  council,  in  administering  jus- 
tice, were  regarded  as  possessing  only  a  judicial  and  never  a 
legislative  function.^  "" 

^Among  primitive  peoples  we  find  no  distinction  made  be- 
tween laws  of  the  state,  requirements  of  religious  ritual,  and 
the  demands  of  morality.  Conduct  in  all  these  respects  was 
governed  by  an  undifferentiated  mass  of  rules,  which  were 
enforced  upon  the  individual,  not  only  by  the  severest  hu- 
man penalties,  but  by  the  even  more  terrible  fears  of  super- 
human powers.  Little  real  force,  however,  is  required  to  se- 
cure obedience  to  customary  law.  The  immobility  of  habit, 
public  opinion,  and  superstition,  all  combine  to  make  disobe- 
dience well  nigh  impossible.  -' 

1  Maine,  Ancteni  Lavj^  p.  125. 

2  Odyssey  ix.,  1 14. 

3  Maine,  Early  History  of  histitutions.     Lect.  xiii. 

4  Century  Dictionary. 

5  Maine,  Ancient  Law—'''  It  is  certain  that  in  the  infancy  of  mankind, 
no  sort  of  legislature,  not  even  a  distinct  author  of  law  is  contemplated 
or  conceived  of.  Law  has  scarcely  reached  the  footing  of  custom  ;  it  is 
rather  a  habit."     p.  8. 


THE    CONCEPT    OF    LAW    IN    ETHICS.  3 

''There  is  no  system  of  recorded  law  literally  from  China 
to  Peru,"  says  Sir  Henry  Maine,  "  which,  when  it  first  emerges 
into  notice,  is  not  seen  to  be  entangled  with  religious  ritual 
and  observance."  1 

The  general  conclusion  thus  expressed  by  Maine  as  the 
result  of  his  studies  of  institutions  in  India,  is  equally  true 
of  the  early  Greeks.  This  primitive  confusion  of  law,  relig- 
ion and  morality  among  the  Greeks  is  well  described  in  the 
following  passage  from  Grote  : 

^  **  In  historical  Athens  the  great  impersonal  authority  called 
*  The  Laws,'  stood  out  separately,  both  as  guide  and  sanc- 
tion, distinct  from  religious  duty  or  private  sympathies ;  but 
of  this  discriminated  conception  of  positive  law  and  positive 
morality  the  germ  only  can  be  detected  in  the  Homeric  poems. 
The  appropriate  Greek  word  for  human  laws  never  occurs. 
Amidst  a  very  wavering  phraseology  we  can  detect  a  grad- 
ual transition  from  the  primitive  idea  of  a  personal  goddess 
Themis,  attached  to  Zeus,  first  to  his  sentences  or  orders 
called  Themistes,  and  next  by  a  still  farther  remove  to  vari- 
ous established  customs,  which  these  sentences  were  believed 
to  sanctify — the  authority  of  religion  and  that  of  custom  co- 
alescing into  one  indivisible  obligation."  ^ 

The  word  vofio:;,  denoting  etymologically  "that  which  is 
assigned  or  appointed,"  ^  is  the  proper  Greek  term  for  law. 
This  is  the  first  word  to  acquire  and  retain  anything  like  the 
meaning  which  we  now  express  by  law.  The  Romans  trans- 
lated vofioQ  hy  lex  and  then  carried  over  into  Latin  and  handed 
down  to  modern  nations  the  conception  which  the  Greeks 
had  acquired  and  embalmed  in  the  word.  The  English  word 
has  derived  its  meaning  not  so  much  from  etymology  and  early 
Teutonic  uses,  as  from  the  combined  influence  of  Greek,  Latin 
and  Hebrew  terms  which  it  has  been  used  to  translate.  In 
tracing  the  development  of  the  Greek  concept  of  vofio^,  there- 
fore, we  are  studying  the  early  history  of  our  own  concept  of 
law.  This  word  was  not  used  by  Homer.  It  is  found  first  in 
Hesiod.     At  Athens  i^6//oc  was  the  name  given  especially  to 

1  Maine,  Early  Law  and  Custom.     Chap.  i. 

2  Grote,  History  of  Greece,  vol.  ii.,  p.  no. 

3  Liddell  &  Scott,  Lexicon. 


4  THE    CONCEPT    OF    LAW    IN    ETHICS. 

the  laws  of  Solon  (those  of  Draco  being  called  deaiiol)  and  then 
generally  to  laws,  ordinances,  particularly  to  fundamental 
laws  in  distinction  from  (pi^cpcafia  special  bills,  or  decrees. i 

§  2.  Since  in  early  times  legal  and  moral  ideas  were 
indiscriminately  combined  under  the  general  notion  of  cus- 
tomary law,  we  must  look  for  the  beginning  of  the  history 
of  the  concept  of  law  in  morality,  where  the  tendency  to 
discriminate  between  the  two  fields  of  conduct  first  manifests 
itself.  It  is  not  a  case  of  a  concept  developed  in  one  sphere 
of  life  and  then  carried  over  by  analogy  or  metaphor  to 
another ;  it  is  rather  a  case  of  differentiation.  -^  We  do  not 
find  moral  and  legal  institutions  existing  side  by  side  and  then 
after  a  time  the  notions  developed  in  one  sphere  transferred 
to  the  other.  Rather  is  conduct  as  a  whole  ruled  by  one 
homogeneous  mass  of  customs.  The  first  beginning  of  the 
distinction  between  moral  and  civil  law  is  seen  in  the  division 
of  custom  or  law  into  written  and  ?/?/wnV/^?2,  ^The  written 
law,  being  the  expressed  will  of  the  king  or  state,  enforced  by 
penalties,  corresponds  to  our  notion  of  law  in  the  jural 
sense,  while  the  unwritten  law,  which  depended  for  its  bind- 
ing force  on  habit,  public  opinion,  religious  belief  and  con- 
science, answers  in  a  general  way  to  our  notion  of  moral  law. 
The  unwritten  law  was  regarded  as  the  foundation  and  source 
of  the  written.  The  latter  only  is  changeable,  the  former 
is  original  and  abiding.  ^This  division  of  the  law  is  very 
common  in  Greek  literature.^  One  of  the  earliest  and  most 
famous  examples  of  this  is  in  Sophocles.  Antigone  defies 
the  king,  who  has  forbidden  her  to  bury  her  brother  in  these 
words : 

"  Nor  did  I  deem  thy  edicts  strong  enough, 
That  thou,  a  mortal  man,  should'st  over-pass 
The  unwritten  laws  of  God  that  know  not  change. 
They  are  not  of  to-day  nor  yesterday, 
But  live  forever,  nor  can  man  assign 
When  first  they  sprang  to  being."  ^ 

Aristotle  classifies  laws  as  peculiar  and  universal — peculiar 
laws  being  such  as  have  been  marked  out  by  each  people  in 

I  Lexicon. 
^  2  Schrriidt,  Die  Ethik  der  Alieti  Griechen,  p.  201. 

3  Sophocles,  Antigone,  1.  450,  (Plumptre's  translation.) 


THE    CONCEPT    OF    LAW    IN    ETHICS.  5 

reference  to  itself,  and  being  partly  written  and  partly  un- 
written— universal  laws  being  those  which  are  conformable 
merely  to  the  dictates  of  nature.  "  For  there  does  exist 
naturally  one  universal  sense  of  right  and  wrong,  which  in  a 
certain  degree  all  intuitively  divine  even  should  no  inter- 
course with  each  other,  nor  any  compact  have  existed."  ^  In 
this  connection  Aristotle  cites  Empedodes  as  saying  of  a  cer- 
tain maxim  "that  it  is  not  right  here  and  wrong  there,  but  a 
principle  of  law  to  all.  It  is  extended  uninterruptedly 
throughout  the  spacious  firmament  and  boundless  light." 
Another  term  for  the  unwritten  law  is  equity  which  has  to 
do  with  the  intention  of  the  lawgiver  rather  than  the  lan- 
guage of  the  law,  and  with  the  whole  tenor  and  principle  of 
the  agent's  conduct  rather  than  with  specific  acts.^  Equity 
may  controvene  the  written  law.  In  the  Ethics  he  says  of 
the  nature  of  the  equitable,  that  it  is  a  correction  of  law  when- 
ever the  law  is  defective  owing  to  its  generality.^  Again  he 
says  of  equity  that  it  "remains  forever  and  varies  not  at  any 
time,  neither  does  the  universal  law,  for  this  is  in  conformity 
to  nature,  but  the  written  law  does  frequently  vary."  '^ 

The  reduction  of  a  portion  of  the  ancient  customs  to 
writing  and  the  notion  thus  introduced  of  a  written  law  in 
contrast  with  the  unwritten  law,  must  have  been  one  of  the 
first  steps  toward  the  development  of  the  concept  of  posi- 
tive law.  But  even  the  written  law  differs  essentially  from 
our  modern  notion  of  enacted  law.  It  was  not  looked  upon 
as  the  recorded  will  of  an  established  legislative  authority,  but 
rather  as  a  written  precipitate  of  ancestral  customs.  Plato 
and  Aristotle  regarded  the  distinction  between  law  and  cus- 
tom as  quite  unessential. ^ 

§  3.  Another  influence  in  developing  the  notion  of  posi- 
itive  law  was  the  contrast  which  the  Sophists,  and  later  the 
Cynics,^  made  between  law  and  7iatiire.'^     The  Sophists  were 

1  Aristotle,  Rhetoric^  I.,  xiii.,  2,  (Browne's  tranlation.) 

2  Rhetoric,  I.,  xiii.,  17. 

3  Ethics,  V.  10. 

4  Rhetoric,  I.,  xv. 

5  Schmidt,  Die  Bthik  der  Altefi  Grieche?i,  p.  202.    -^ 

6  Zeller,  Socrates  ajid  the  Socratic  Schools,  p.  322. 

7  VOjiOQ  and  ifuac::. 


6  THE    CONCEPT    OF    LAW    IN    ETHICS. 

the  individualists  and  iconoclasts  of  custom  in  the  fifth 
century.  Hippias  is  represented  in  Xenophon  as  "disput- 
ing the  moral  obligation  of  laws  because  they  so  often  change, 
while  he  acknowledges  as  divine  or  natural  law  only  that 
which  is  everywhere  equally  observed.  In  Plato  he  says  that 
law,  like  a  tyrant,  compels  men  to  do  much  that  is  contrary 
to  nature."  ^ 

This  opposition  of  law  to  nature  must  have  made  much 
more  definite  in  men's  minds,  than  ever  before,  the  notion  of 
a  positive  law  dependent  upon  the  will  of  men.  It  brought 
out  the  distinction  between  legislation  as  a  voluntary  act, 
creative  of  law,  and  the  mere  formulation  of  already  existing 
customs.  Some  of  the  Sophists  went  so  far  as  to  declare  all 
positive  law  to  be  arbitrary  enactments  set  up  by  those  in 
power  for  their  own  advantage,  and  as  laws  and  usage  had 
been  regarded  hitherto  as  the  only  moral  authority,  this  doc- 
trism  seemed  to  dissolve  at  once  all  moral  as  well  as  political 
obligation.  The  distinction  between  written  and  unwritten, 
and  the  opposition  of  law  to  nature  combined  to  develop  and 
make  definite  the  notion  of  law  as  the  enacted  will  of  ra- 
tional beings. 

§  4.  With  Stoicism  another  idea  came  into  prominence, 
the  idea  of  natural  law  or  the  law  of  nahire.  In  the  Greek 
conception  of  natural  law  we  have  something  quite  different 
from  the  natural  laws  of  modern  science.  We  find  here  the 
universal,  unwritten  norms  of  conduct  and  the  order  of  physi- 
cal phenomena  combined  under  the  single  notion  of  law  of 
nature.  Laws  which  prevailed  among  all  nations  and  were 
acknowledged  as  binding  by  all  peoples,  such  as  the  sanctity 
of  oaths,  the  duty  of  hospitality,  etc.,  could  not,  it  was  evi- 
dent, have  been  founded  by  any  prince,  or  city,  or  revealed 
by  the  divinities  or  oracles  of  any  particular  people ;  they 
must  have  their  source  in  the  universal  divine  will  and  be  re- 
vealed by  nature  to  all  men  in  their  own  consciousness.^ 
Such  universal  and  unwritten  laws  as  norms  of  human  con- 
duct, we  have  already  seen,  were  widely  recognized  by  the 

1  Zeller,  Tre-Socratic  Philosophy.     Vol.  ii.,  p.  476, 

2  Zeller,  Ueher  Begri^  tind  Begyundutig  der  Sittlichen  Geseize,  p.  190. 


THE    CONCEPT    OF    LAW    IN    ETHICS.  7 

Greeks.  Heracleitus  was,  perhaps,  the  first  to  connect  ex- 
pressly this  divine  law  with  the  order  of  things  in  the  physi- 
cal world.  1  Often  the  two  were  set  in  opposition,  and  even 
those  who  insisted  most  emphatically  on  the  invariable  neces- 
sity of  the  natural  order  as,  e.  g,  Empedodes,  Plato,  and 
Aristotle,  did  not  designate  this  by  the  term  law.2  With 
very  few  exceptions  before  the  time  of  the  Stoics  this  word 
was  applied  exclusively  to  norms  of  human  conduct,  the 
laws  of  nature,  when  this  expression  was  used,  meaning  such 
rules  of  conduct  as  were  common  to  all  men  and  binding 
upon  them  by  virtue  of  their  very  nature. 

"  It  was  the  founder  of  the  Stoic  school,"  says  Zeller, 
"who  first  brought  into  common  use  the  concept  of  law  as 
applied  to  the  natural  order  of  things."  3  The  extension  of 
law  from  the  sphere  of  human  action  to  the  physical  world 
was  a  natural  consequence  of  the  fundamental  doctrines  of 
Stoicism.  The  Stoics  believed  in  an  ultimate  ground  and 
cause  of  the  world  which  was  not  merely  the  material  sub- 
stance of  things,  but  was  at  the  same  time  the  creative 
Reason.  The  natural  order  and  necessity  in  the  universe 
they  regarded  as  the  expression  of  the  will  of  that  Ultimate 
Reason  and  hence  called  it  the  law  of  nature.  As  man  and 
nature  are  both  under  the  same  divine  lawgiver,  no  distinc- 
tion was  made  between  natural  law  and  moral  law.^  In  the 
absence  of  scientific  precision  the  same  confusion  prevailed 
throughout  the  Middle  Ages.     The  laws  that  determine  the 

1  Zeller,  Pre-Socratic  Philosophy^  p.  41.  An  early  example  of  the 
concept  of  law  in  its  broadest  aspect  is  the  saying  of  Pindar  : 

Nbfio^y  6  ndvTcov  ^aadeh^ 

duazcov  T£  xal  d&avdzcov. 

2  Zeller,  Ueber  Begrzf,  etc.  Plato  in  the  Trimaeus  83  E  seems  to  use 
the  phrase  Maws  of  nature'  in  something  like  the  modern  scientific 
sense.  Zeller  finds  one  such  case  in  Aristotle,  see  essay  Ueber  Begriff^ 
etc.,  note  11. 

3  Ibid.  p.  192. 

4  Chrysippus,  according  to  Diog.  Laert.,  vii.  88,  calls  the  "  common 
law  right  reason  which  pervades  all  things,  being  identical  with  Zeus,  the 
ruler  of  the  government  of  the  universe." 

VOyLOC,  was  frequently  called  by  the  Stoics  Xoyoq,  dpOo^,  and  Cicero  says 
Lex  vera  ratio  est  recta  summi  Jovis. — De  legt'bus,  ii.  4.  For  furtherex- 
amples  see  Zeller,  Stoics,  Epicureans  and  Sceptics,  p.  241,  note.   ^^ 


8  THE    CONCEPT    OF    LAW    IN    ETHICS. 

order  of  nature  and  those  which  express  the  duty  of  man 
were  regarded  alike  as  divine  commands.  It  is  only  since 
the  sixteenth  and .  seventeenth  centuries  that  philosophers 
and  men  of  science  have  held  a  clear  conception  of  natural 
law  as  the  expression  of  the  uniformities  of  the  phenome- 
nal world,  in  distinction  from  the  primary  use  of  law  as  ap- 
plied to  norms  of  human  conduct. 

§  5.  Were  we  tracing  the  history  of  the  concept  of  law  in 
physical  science,  we  should  have  now  to  consider  what  use 
the  Stoics  made  of  this  law  of  nature  in  explaining  the  mate- 
rial world.  Our  interest  here,  however,  is  in  the  use  they 
made  of  the  concept  in  their  moral  philosophy. 

The  central  problem  of  Greek  ethics  was  not  to  determine 
the  moral  laws,  but  rather  to  find  the  chief  good  and  the 
mode  of  conduct  which  would  secure  it.  It  was  the  doctrine 
of  goods,  rather  than  the  doctrine  of  duties  which  gave  the 
key-note  to  the  whole  moral  philosophy  of  the  Greeks.  With 
the  Stoics,  as  with  their  contemporaries  and  opponents,  the 
Epicureans,  and  with  Aristotle  before  them,  the  aim  is  to  de- 
termine the  highest  good  of  life.^  The  Epicureans  pro- 
nounced pleasure  the  highest  good ;  the  Stoics,  virtue,^  and 
virtue  they  explained  as  conduct  according  to  the  laws  of 
nature.^  These  laws  of  nature  are  not  conceived  so  much 
as  imperatives  of  the  divine  will  which  ought  to  be  obeyed 
because  thus  commanded,  but  rather  as  ordinances  of  the 
divine  reason,  compliances  with  which  can  alone  secure  weal 
to  rational  beings. 

The  fundamental  being  of  the  universe  was  described  by 
the  Stoics  by  a  variety  of  terms,  all  meaning  the  same,  one 
primary  force  permeating  the  v/hole  world — God,  Soul  of  the 
World,  Providence,  Destiny,  Reason  of  the  World,  Univer- 
sal Law,  Nature.'^  The  good  in  every  system  of  thought 
must  be  based  on  the  general  arrangement  of  the  world,  and 
as  the  Stoics  understood  the  world  to  be  a  cosmos  governed 
by    Reason,  they  consequently  found  the  good  of  the  indi- 

1  Zeller,  Stoics,  Epicureans  and  Sce't>tics,  p.  225. 

2  Ibid.  p.  229. 
\  3  Ibid.  p.  254. 

'4  Ibid.  p.  148  ff. 


THE    CONCEPT    OF    LAW    IN    ETHICS.  9 

vidual  in  submitting  himself  to  the  laws  of  this  universal  rea- 
son. Obedience  is  not  imposed  upon  men  by  authority 
from  without,  but  men  are  bound  by  their  very  desire  for  the 
highest  good  to  obey  the  laws  of  their  own  rational  nature, 
which  are  at  the  same  time  the  laws  of  the  rational  universe. 
The  grand  principle  of  human  life,  then,  is  to  live  according 
to  nature.  But  by  nature  the  Stoics  meant  almost  the  oppo- 
site of  what  is  ordinarily  meant  by  that  term.  To  follow 
nature  with  them  is  not  to  give  loose  rein  to  one's  native 
passions  and  emotions  ;  it  is  to  conform  to  the  universal  and 
rational.'^  Emotions  and  passions  they  regarded  as  a  product 
of  the  irrational  elements^  in  our  make-up  and  as  such  to  be 
neglected  by  the  wise  men.  Hence  the  modern  usage  of  the 
term  "  Stoical."  This  failure  to  provide  for  the  legitimate  ex- 
ercise of  the  emotions  is  the  prominent  defect  in  the  Stoic 
theory  of  morals — a  consequence  which  followed  quite  easily 
from  their  too  exclusively  rational  interpretation  of  nature. 
An  adequate  ethics  will  find  scope  for  all  of  man's  faculties 
and  powers,  for  the  symmetrical  development  of  all  sides  of 
his  nature. 

The  Stoics  denounced  existing  customs  and  preached  the 
doctrine  of  nature,  but  it  was  the  rational,  not  the  emotional 
nature,  and  it  was  the  nature  of  the  future,  and  not  the  na- 
ture of  the  past.  They  did  not  look  for  improvement  in  a  re- 
turn to  some  golden  age  of  innocence,  but  in  a  progressive 
moral  culture  of  men  according  to  the  laws  of  the  rational 
nature.  They  set  before  themselves  the  type  of  a  perfect 
wise  man,  a  type  which  they  admitted  no  one  had  yet  realized 
in  himself,  but  which  was  to  them,  nevertheless,  the  ideal 
goal  of  moral  effect.  "Zeno  and  the  rest,  though  they  do 
not  claim  to  be  wise,  yet  claimed  to  be  '  advancing.'  This  no- 
tion of  conscious  moral  progress  and  self  discipline  is  too 
familiar  now  for  us  easily  to  believe  that  it  was  first  intro- 
duced into  Greece  in  the  third  century  B.  C.     It  may  be  said, 

1  Ibid.  p.  240. 

2  Grant,  The  Ethics  of  Aristotle,  Vol.  I.,  Essay  vi.     The  A?icie7it  Stoics, 

p.  319- 

3  "  Emotion  or  passion  is  a  movement  of  mind  contrary  to  reason  and 
nature."   'Zeller,  Stoics,  etc.,  p.  244. 


10  THE    CONCEPT    OF    LAW    IN    ETHICS. 

indeed,  to  be  contained  implicitly  in  Aristotle's  theory  of 
*  habits,'  but  it  is  in  reality  the  expression  of  a  new  and 
totally  different  spirit.  By  this  spirit  we  shall  find  the  later 
Stoics  deeply  penetrated.  It  constituted  perhaps  the  most 
purely  'moral'  notion  of  antiquity,  as  implying  the  deepest 
associations,  which  are  attached  to  the  word  moral."  ^ 

Closely  connected  with  the  modern  concept  of  moral  law 
is  the  idea  of  duty.  Though  quite  in  harmony  with  their  gen- 
eral mode  of  thought  and  intense  moral  earnestness,  the  no- 
tion of  duty  as  a  distinct  moral  concept  does  not  seem  to 
have  been  grasped  by  the  Greek  Stoics.^  In  the  term 
xa^yjxov,  'the  suitable,'  'the  fitting,'  'the  proper,'  we  have 
the  'lineal  antecedent'  of  our  duty.  This  is  the  term 
which  was  translated  into  Latin  by  officium.  It  was  probably 
under  the  influences  of  the  Roman  sternness  of  character 
and  reverence  for  law  that  this  notion  of  duty  as  the  correlate 
of  law  first  came  to  consciousness.^ 

The  Stoics  exalted  the  individual  in  contrast  with  the  insti- 
tutions and  laws  of  human  states,  but  only  to  subordinate  him 
again  to  the  universal  Reason  and  the  laws  of  the  cosmic 
state.  The  cosmopolitanism  of  the  Stoics  was  an  integral 
part  of  their  moral  philosophy.  It  was  a  cosmopolitanism, 
too,  in  the  broadest  etymological  sense  of  the  term  ;  ^  it  not 
only  brought  the  individual  into  a  common  citizenship  and 
brotherhood  of  all  nations,  but  also  made  him  as  a  rational  be- 
ing a  partaker  of  the  rational  life  of  the  whole  cosmos. 
The  universe  is  one  city  governed  by  the  one  law  of  nature 
and  hence  all  rational  beings,  as  subjects  of  this  law,  must 
be  fellow-citizens  of  the  one  world-city.^  The  fact  that  the 
founders  of  the  Stoic  school  were  men  of  foreign  birth*^  who 

r  Grant,  Ethics  of  Aristotle.     Vol.  I.,  p   324. 

2  "  Und  so  fehlt  denn  der  Begriff  der  Pflicht  den  Sjstemen  der  Griechen 
vollig."     Ziegler,  Die  Ethik  der  Griechen  uttd  Roiner,  p.  241. 

3  Grant,  The  Ethics  of  Aristotle.     Vol.  I.,  Essay  vi.,  p.  325. 

4  Ibid.  p.  326. 

5  Zeller,  Stoics,  etc.,  p  326.  "  Reason  is  the  common  law  for  all,  and 
those  who  owe  allegiance  to  one  law  are  members  of  one  state."     p.  330. 

6  Zeller  says  (vS/o/c.t,  etc.,  p.  36) :  "  Nearly  all  the  most  important  Sto- 
ics before  the  Christian  era  belong  by  birth  to  Asia  Minor,  to  Syria,  and 
to  the  islands  of  the  Eastern    Archipelago."     Grant  gives  a  list  of  the 


THE    CONCEPT    OF    LAW    IN    ETHICS.  II 

came  to  Greece  in  adult  life,  was  doubtless  influential  in  en- 
abling them  to  transcend  the  limitations  of  Hellenic  insti- 
tutions. The  conquests  of  Alexander,  too,  had  broadened 
Greek  knowledge  of  the  barbarians  and  made  it  possible  for 
the  thinkers  of  the  third  century  to  realize  the  common 
humanity  in  all  peoples  as  it  had  never  been  possible  before. 
But  while  the  foreign  birth  of  the  early  Stoics  may  have 
made  it  easier  for  them  to  deduce  the  cosmopolitan  conclu- 
sions of  their  system,  and  the  Macedonian  conquests  may 
have  made  their  hearers  more  accessible  to  such  views,  yet 
despite  all  the  influences  of  these  two  concurrent  circum- 
stances, we  must  regard  the  cosmopolitanism  of  the  Stoics 
as  a  necessary  consequence  of  their  fundamental  conception 
of  the  universe  as  rational,  and  all  men  as  subject  to  the  law 
of  universal  reason.  Plato  had  sunk  the  individual  in  the 
state.  The  Sophists  regarded  men  as  lawless  atoms,  essen- 
tially unrelated.  By  the  doctrine  of  the  Universal  Reason 
and  the  law  of  nature  the  Stoics  escaped  both  of  these  ex- 
tremes. While  doing  full  justice  to  the  individual,  they  still 
emphasized  his  subordination  to  law  and  order. 

Due  weight  had  been  given  to  the  moral  significance  of 
the  state  and  legal  institutions  in  the  earlier  systems,^  but 
the  Stoics  were  the  first  to  take  the  term  law  out  of  its 
strictly  jural  sense  and  apply  it  in  a  wider  and  more  distinct- 
tively  moral  field.  The  deep  ethical  import  of  law  is  per- 
haps nowhere  more  clearly  manifested  than  in  the  famous 
hymn  of  Cleanthes  to  Zeus :  "  Thou  makest  order  out  of 
disorder,  and  what  is  worthless  becomes  precious  in  thy 
sight ;  for  thou  hast  fitted  together  good  and  evil  into  one 
and  hast  established  one  law,  that  exists  forever.     But  the 

earlj  Stoics  and  their  places  of  birth  {Ethics  of  Aristotle,  Vol.  I,  p.  308), 
and  advances  the  theory  that  the  peculiar  moral  earnestness  of  the  Stoic 
philosophy  was  of  Semitic  origin  and  '  alien  from  the  childlike  and 
unconscious  spirit  of  the  Hellenic  mind,  with  its  tendency  to  objective 
thought  and  the  enjoyment  of  nature.' 

I  Schmidt  Die  Ethik  der  Alteti  Griecken,  p.  198.  "  Euripides  refers 
the  distinction  of  right  and  wrong  to  the  laws.  Kallicles  in  the  Gorgias 
(482e-483  c)  designates  the  content  of  morality  as  that  which  corresponds 
to  the  law  and  so  takes  law  and  morality  as  meaning  the  same."  Ibid, 
p.  200. 


12  THE    CONCEPT    OF    LAW    IN    ETHICS. 

wicked  fly  from  thy  law,  unhappy  ones,  and  though  they  de- 
sire to  possess  what  is  good,  yet  they  see  not,  neither  do  they 
hear,  the  universal  law  of  God.  .  .  .  O  Zeus,  giver  of 
all  things,  who  dwellest  in  dark  clouds,  and  rulest  over  the 
thunder,  deliver  men  from  their  foolishness.  Scatter  it  from 
their  souls,  and  grant  them  to  obtain  wisdom,  for  by  wisdom 
thou  dost  rightly  govern  all  things ;  that  being  honored  we 
may  repay  thee  with  honour,  singing  thy  works  without 
ceasing,  as  is  right  for  us  to  do.  For  there  is  no  greater  thing 
than  this,  either  for  mortal  men  or  for  the  gods,  to  sing  rightly 
the  universal  law."  i 

§  6.  The  notion  of  law  thus  borrowed  from  jurisprudence 
was  destined  to  be  returned  with  interest.  The  most  signal 
triumph  of  the  Stoic  doctrine  of  natural  law  was  on  the  field 
of  Roman  law.  Ziegler  says  of  the  philosophy  of  the  Stoa 
that  it  ''is  of  the  greatest  significance  for  the  history  of 
Ethics  not  only  on  its  own  account,  but  also  above  all,  be- 
cause it  entered  the  Roman  world  as  a  ferment  and  exercised 
there  in  troubled  times  a  mighty  influence  on  the  best  minds 
theoretically  and  practically. "2  Xhe  conception  of  a  law  of 
nature  furnished  the  statesmen  and  jurists  of  Rome  with  a 
moral  basis  for  their  law  and  an  ideal  by  which  to  direct  its 
reformation  and  development.^  No  other-  idea  of  Greek 
philosophy  found  such  a  keen  appreciation  at  Rome  or  exer- 
cised anything  like  as  great  an  influence  on  Roman  thought. 
The  Romans  had  no  taste  for  metaphysics  and  Greek  specu- 
lations in  general  excited  only  a  dilettante  interest  among 
them. 

Two  kinds  of  law  were  early  recognized  at  Rome.  At  the 
the  time  when  Greek  philosophic  thought  began  to  be  felt 
among  the  Romans  these  two  bodies  of  law  had  been  develop- 
ing for  centuries   not  entirely  without  influence  on  one  an- 

1  This  hymn  is  preserved  by  Stobaeus,  EcL  Phys.,  i,  30.  The  Greek  is 
given  by  Ueberweg,  History  of  Philosophy,  Vol.  I.,  p.  197.  The  selection 
quoted  is  from  the  rendering  of  Grant,  Ethics  of  Aristotle,  Vol.  I,  p.  329. 

2  Ziegler,  Die  Ethik  der  Griechen  u»d  Rovier,  p.  165. 

3  For  the  influence  of  Stoicism  on  Roman  Law  see  Grant,  Ethics  of 
Aristotle,  Vol.  I.,  p.  340,  ff;  Morey,  Outlines  of  Rotnan  Laiv,  p.  lo^,  ff; 
Maine,  Ancient  Laiv,  Chap  HL,  '  Law  of  Nature  and  Equity.' 


THE    CONCEPT    OF    LAW    IN    ETHICS.  1 3 

Other,  but  yet  each  by  itself  and  along  its  own  path.  The 
civil  law  {jus  civile)  was  the  law  of  the  Roman  citizen.  It 
owed  its  origin  to  the  religious  conception  of  the  early 
Romans^  and  was  regarded  as  binding  upon  and  applicable  to 
such  only  as  participated  in  the  religion  of  the  city.  This 
law  was  first  put  in  writing  in  the  former  Twelve  Tables. 
The  presence  of  foreigners  in  the  city  and  the  needs  of  com- 
merce early  showed  the  necessity  of  a  law  applicable  to  those 
who  were  not  citizens.  Since  strangers  could  not  be  judged 
by  the  sacred  civil  law  of  Rome,  the  Praetor  to  whose  court 
such  cases  were  brought  sought  out  and  applied  the  various 
legal  principles  common  to  the  surrounding  Italian  tribes. 
It  was  the  custom  for  the  Praetor  each  year,  on  beginning  his 
term  of  office,  to  publish  an  edict  setting  forth  the  principles 
on  which  he  proposed  to  adjudicate  the  cases  brought  before 
him.  Each  new  Praetor  published  the  edict  of  his  prede- 
cessor, making  such  additions  as  he  deemed  advisable.  As 
this  body  of  law  was  established  to  judge  foreigners  by,  and 
was  supposed  to  consist  of  laws  common  to  all  the  tribes  and 
nationalities  represented  at  Rome,  it  was  called  the  jus  gen- 
tium or  Law  of  Nations.  Constructed  thus  from  principles 
common  to  a  number  of  tribes,  tho.  jus  gentium  was  much  less 
cumbered  by  legal  technicalities  and  formulas  and  was  much 
more  liberal  and  equitable  than  the  jus  civile.  In  spite  of 
the  contempt  which  the  Romans  had  for  it  as  the  law  of  for- 
eigners it  still  exercised  a  humanizing  influence  over  the  civil 
law  itself. 

From  the  middle  of  the  second  century  B.  C.  on,  Greek 
philosophy  was  studied  by  the  leading  minds  at  Rome. 
Epicureanism  helped  to  break  down  the  superstitious  fears  of 
the  old  gods,  but  its  ethics  met  with  no  marked  response. 
The  ethics  of  Stoicism,  however,  appealed  to  the  moral  sense 
of  the  nation.  Law  took  on  a  new  and  profoundly  ethical 
aspect.     Its  ultimate  seat  and  authority  was  seen  to  be  not 

I  "  This  religion  had  produced  laws;  the  relations  among  men — prop- 
erty, inheritance,  legal  proceedings — all  were  regulated  not  by  the  princi- 
ples of  natural  equity,  but  by  the  dogmas  of  this  religion,  and  with  a  view 
to  the  requirements  of  its  worship."  De  Coulanges,  The  Anctetit  City, 
P-  519- 


14  THE    CONCEPT    OF    LAW    IN    ETHICS. 

in  the  founder  of  the  city  or  in  the  will  of  changeable  deities, 
but  in  the  unchangeable  nature  of  things.  As  the  Romans 
compared  their  actual  laws  with  the  Stoic  ideal  of  natural 
law,  they  saw  that  the  despised yV^i-  gentumt  came  much  nearer 
to  that  ideal  than  their  revered  jus  civile.  It  possessed  in  a 
far  higher  degree  those  marks  of  simplicity  and  harmony 
which  have  always  been  regarded  as  characterizing  the  works 
of  nature.  The  old  feeling  of  contempt  for  the  jus  geiitiuvi 
gradually  gave  way  and  the  Roman  Jurists  brought  up  under 
Stoic  teachings  came  to  look  upon  it  with  reverence  as  a  par- 
tial embodiment,  or  perhaps  as  a  remnant  of  that  ancient 
law  of  nature.  No  one  contributed  more  to  this  change  of 
sentiment  than  Cicero.  'The  first  important  attempt  made 
by  the  Roman  writers  to  ground  law  upon  nature  we  find  in 
the  '  Laws '  of  Cicero  where  the  fundamental  proposition  is 
laid  down  that  man  is  born  for  justice  and  that  law  and  equity 
are  not  a  mere  establishment  of  opinion,  but  are  an  institu- 
tion of  nature.'i 

Legal  development  and  reform  under  the  Republic  had 
been  empirical,  unconscious,  so  to  speak,  the  result  of  pro- 
cedure. Under  the  Empire,  however,  guided  and  stimulated 
by  the  ideal  of  natural  law,  progress  was  conscious  and  rapid. 
The  old  civil  law  became  more  and  more  circumscribed  and 
one  after  another  of  its  formalities  was  abandoned.  'The 
preference  accorded  by  jurists  and  judges  to  the  jus  gentium 
over  the  jus  civile  is  insufficient  to  account  for  these  and 
many  other  changes  in  the  same  direction,  as  well  as  for  the 
ever  increasing  tendency  evinced  to  subordinate  word  and 
deed  to  the  voluntas  (intention)  from  which  they  arose. 
They  are  rather  to  be  attributed  to  the  striving  on  the  part 
of  many  after  a  higher  ideal,  to  which  they  gave  the  name  of 
jus  naturale'^  Among  the  intensely  practical  Romans  this 
ideal  of  law  worked  a  reformatory  and  never  a  revolutionary 
influence,  as  has  been  the  case  in  modern  times.  'The 
value  and  serviceableness  of  the  conception  arose  from  its 
keeping  before  the  mental  vision  a  type  of  perfect  law  and 

"- 1  Morey,  Outlines  of  Roman  Law. 
^   2  Muirhead,  Lavj  of  Rome^  p.  297 


THE    CONCEPT    OF    LAW    IN    ETHICS.  1 5 

from  its  inspiring  the  hope  of  an  indefinite  approximation  to 
it,  at  the  same  time  that  it  never  tempted  the  practitioner  or 
the  citizen  to  deny  the  obligation  of  existing  laws  which  had 
not  been  adjusted  to  the  theory.  ...  I  know  no  reason 
why  the  law  of  the  Romans  should  be  superior  to  the  laws  of 
the  Hindoos,  unless  the  theory  of  Natural  Law  had  given  it 
a  type  of  excellence  different  from  the  usual  one.  In  this 
one  exceptional  instance,  simplicity  and  symmetry  were  kept 
before  the  eyes  of  society  whose  influence  on  mankind  was 
destined  to  be  prodigious  from  other  causes,  as  the  charac- 
teristic of  an  ideal  and  absolutely  perfect  law.'^ 

The  laws  of  Rome  as  finally  formulated  by  the  great  jurists 
and  handed  down  to  posterity  was  the  happy  union  of  Roman 
practice  and  Greek  theory.  The  Stoic  notion  of  natural  law 
furnished  an  ideal  and  ethical  basis  for  the  practical  legal 
institution  of  Rome,  and  in  so  doing  gave  them  a  breadth 
and  depth  of  meaning  that  has  made  them  of  incalculable 
value  for  all  time.^  In  the  code  of  Justinian  the  theory  of 
law  of  nature  was  preserved  through  the  Middle  Ages.  Un- 
der the  influence  of  the  Church  and  of  the  Romanized  cities 
the  old  law  as  a  body  of  practical  rules  was  kept  in  use  by 
the  Germanic  conquerors  even  in  the  darkest  ages.  Scien- 
tific study  of  the  law  and  its  principles,  however,  was  sus- 
pended and  not  revived  till  about  the  beginning  of  the  twelfth 
century.  It  was  then  that  the  University  of  Bologna  be- 
came famous  as  a  seat  of  legal  studies,  and  never  since  has 
the  law  of  Rome  ceased  to  be  studied  in  the  principal  insti- 
tutions of  learning  in  Western  Europe. 

It  would  be  a  most  interesting  historical  study  to  go  on 
from  this  point  and  trace  the  influence  of  the  Stoic  doctrine 
of  law  of  nature  embodied  and  preserved  as  it  was  in  Ro- 
man law  ;3   to  show  how  this  doctrine  effected  the  develop- 

1  Maine,  Ancient  Laiv,  p.  76,  78. 

2  (Roman  Law)  "  endures  still,  furnishing  the  spirit,  principles,  and  to  a 
great  extent  the  substance  of  all  modern  bodies  of  law,  second  in  for- 
warding civilization  to  no  single  force  save  Christianity."  Andrews,  In- 
stitiUes  of  General  History,  p.  78. 

3  Maine,  Ancient  Laiv,  Chap.  IV.  '  The  Modern  History  of  the  Law 
of  Nature.'  "  The  importance  of  this  theory  to  mankind  has  been  much 
greater  that  its  philosophical  deficiencies  would  lead  us  to  expect."    p.  74. 


1 6  THE    CONCEPT    OF    LAW    IN    ETHICS. 

ment  of  jurisprudence  in  France  ;  how  the  alliance  with  the 
lawyers  enabled  the  king  to  solidify  and  centralize  the  mon- 
archy;  how,  later,  Rousseau  made  of  this  jural  doctrine  a 
political  doctrine,  which  thus  became  the  watchword  of  the 
French  Revolution ;  ^  how  the  same  doctrine  gave  a  theo- 
retic basis^to  the  men  who  carried  through  the  English  Rev- 
olution, and  how  again  the  same  thought  learned  from' Locke, 
Montesquieu  and  Rousseau  animated  the  American  Revolu- 
tion. We  must  not  turn  aside,  however,  to  follow  this  notion 
of  natural  law  through  the  tangled  web  of  jurisprudence, 
theories  of  the  state,  and  practical  politics.  Our  purpose  here 
is  to  trace  the  notion  of  law  in  the  principal  systems  of  ethics 
noticing  the  ethical  ideas  in  jurisprudence  and  politics  only 
so  far  as  they  have  had  a  reflex  influence  on  moral  philosophy. 

1  Ibid.  p.  80:  "The  theory  of  Natural  Law  is  the  source  of  most  all 
the  special  ideas  as  to  law,  politics  and  society  which  France,  during  the 
last  hundred  years  has  been  the  instrument  of  diffusing  all  over  the 
western  world." 


THE    CONCEPT   OF   LAW   IN    ETHICS.  1 7 


CHAPTER   II 


§  7.  In  the  Middle  Ages  morals  and  religion,  ethics  and 
theology,  were  inextricably  confounded.  Nor  could  we  ex- 
pect it  to  have  been  otherwise.  Classical  culture  had  gone 
out  and  the  only  intellectual  life  of  the  times  was  in  the 
Church.  Philosophy  was  the  handmaid  of  theology.  It  is, 
therefore,  in  the  works  of  the  Christian  theologians  that  we 
must  look  for  a  continuation  of  the  stream  of  ethical  thought. 
Remembering  the  stern  denunciation  which  the  founder  of 
Christianity  pronounced  against  the  legalism  of  the  Scribes 
and  Pharisees,  and  his  constant insistance  upon  'inwardness' 
i.  e.,  a  rectitude  of  heart  and  spirit  and  a  positive  good-will 
(/J  dydTTTJ),  we  might  expect  to  find  the  notion  of  law  playing 
but  a  small  part  in  Christian  Ethics.  Three  facts  may  be 
mentioned  whose  influence  on  Christianity  combined  to  give 
a  jural  form  to  its  moral  teachings  : 

I.  The  Hebrew  origin  of  Christianity. 
'  As  among  all  early  peoples,  so  in  the  case  of  the  Israelites, 
religion,  morality  and  civil  law  were  presented  to  the  popu- 
lar consciousness  in  one  undifferentiated  mass  of  rules. 
The  law  of  Moses,  the  code  of  ancient  Israel,  combined  in 
its  scope  rules  of  worship,  norms  of  moral  conduct,  and  the 
legal  ordinances  of  the  nation.  All  alike  indiscriminately 
were  regarded  as  the  express  commands  of  Jehovah.  The  con- 
ception of  their  national  god  as  a  god  of  righteousness  gave  a 
peculiar  prominence  to  the  ethical  portion  of  these  com- 
mands. We  find,  therefore,  the  Decalogue  combining,  as  it 
does,  the  fundamental  principles  of  religion  and  the  most  es- 
sential moral  norms,  early  regarded  as  the  core  of  the  He- 
brew code,  and  after  the  early  Christians  had  freed  them- 


1 8  THE    CONCEPT    OF    LAW    IN    ETHICS. 

selves  from  the  trammels  of  the  old  ceremonial  law,  the 
*Thou  shalt '  and  the  'Thou  shalt  not'  of  Sinai  still  thun- 
dered in  the  consciences  of  men  as  the  veritable  law  of  God. 
2.  A  second  fact  which  had  an  influence  in  giving  a  jural 
form  to  Christian  conception  of  morality  was  the  three  cen- 
turies of  hostility  and  practical  separation  between  Christian- 
ity and  the  Empire. 

In  its  attitude  toward  the  state  Christianity  presents  a 
marked  contrast  to  both  Judaism  and  paganism.  The  con- 
queror of  the  nations  had  a  place  for  the  gods  of  all  the  na- 
tions conquered.  But  Christianity  was  not  a  national  religion 
and  the  Roman  government  could  find  no  place  for  it.  Its 
aim  was  to  establish  a  kingdom  not  of  this  world,  a  spiritual 
kingdom  which  the  rulers  of  this  world  could  not  understand. 
The  clear  demarkation  of  the  two  fields  of  duty  in  the  princi- 
ple of  the  founder,  *  render  unto  Caesar  the  things  that  are  Cae- 
sar's and  unto  God  the  things  that  are  God's,'  presented  a 
distinction  between  religion  and  jurisprudence  that  was 
wholly  foreign  to  ancient  philosophy  and  statecraft.  This 
distinction  in  thought  became  an  actuality  in  practice  during 
the  centuries  of  persecution  to  which  the  new  religion  was 
subject.-  Even  when  Christianity  became  the  religion  of 
the  state,  the  result  was  rather  to  free  the  state  from  the 
cumbersome  formalities  of  the  ancient  religion,  than  to 
impose  upon  it  any  new  ones.^  However  later  ecclesiastics 
might  endeavor  to  subordinate  the  temporal  to  the  spiritual, 
the  distinction  in  thought  at  least  was  never  lost  sight  of, 
and  we  have  again  to-day  in  this  country,  if  not  in  Europe, 
the  separation  of  Church  and  State  in  practice  as  well  as  in 
theory. 

Now  during  this  period  of  antagonism  between  the  Chris- 
tians and  the  Empire,  they  made  a  constant  effort  to  have 
just  as  little  as  possible  to  do  with  the  secular  courts.  The 
Hebrew  scriptures  were  regarded  as  revealing  a  divine  code 
of  laws,  and  by  means  of  this  code  the  Christians  constituted 
themselves  *  an  ordered  community  essentially  distinct  from 

I  "Christianity  is  the  first  religion  that  did  not  claim  to  be  the  source 
of  law" — last  chapter  of  De  Coulanges,  The  Ancient  City. 


THE    CONCEPT    OF    LAW    IN    ETHICS.  1 9 

the  state.'  This  very  separation  from  the  jurisprudence  of 
the  state  served  to  stamp  upon  the  peculiar  moral  maxims  of 
Christianity  a  jural  form,  since  for  the  first  three  hundred 
years  they  had  actually  taken  the  place  of  all  civil  law.  The 
use  of  penances  and  excommunication  as  temporal  sanctions 
of  the  divine  law  intensified  the  legal  aspect  of  Christian 
ethics. 

In  comparison  with  Greek  ethics,  Sidgwick  says  that  "the 
first  point  to  be  noticed  as  novel  is  the  conception  of  mo- 
rality as  the  positive  law  of  a  theocratic  community,  possess- 
ing a  written  code  imposed  by  divine  revelation,  and  sanc- 
tioned by  express  divine  promises  and  threatenings."  ^  We 
have  already  seen  that  among  the  Greeks  the  unwritten  laws 
and  later  the  law  of  nature,  had  a  highly  ethical  import,  and 
were  often  regarded  as  of  divine  origin.  But  the  notion  of 
command,  the  expression  of  a  will,  was  never  more  than  dimly 
conceived  in  the  background.  These  laws  were  principles  of 
conduct  by  which  alone  virtue  or  happiness  could  be  attained, 
rather  than  the  imperatives  of  a  divine  lawgiver  sanctioned 
by  rewards  and  punishments.  In  Judaism  and  Christianity 
the  notion  of  the  imperative  came  into  the  foreground. 

3.  Besides  the  Hebrew  origin  and  the  peculiar  circum- 
stances of  its  early  history,  Christianity  in  the  West  was  sub- 
ject to  a  Roman  influence  which  made  for  legalism. 

The  peculiar  jural  bent  of  the  best  Roman  thought  and 
the  high  success  of  Rome's  legal  institutions  exerted  a  power- 
ful effect  on  Latin  Christianity.  The  very  language  was  sat- 
urated with  legal  concepts.  The  mere  translation  of  the 
New  Testament  into  Latin  gave  to  Christian  doctrine  a  de- 
cided jural  tone  that  had  been  quite  unsuspected  in  the  Greek. 
God  was  no  longer  the  Heavenly  Father  of  the  common  man, 
or  the  Universal  Reason  of  the  Greek  philosopher,  so  much 
as  the  Moral  Governor  of  the  world  bound  to  maintain  a  just 
government. 

Besides  this  general  influence  upon  Christian  thought  from 
the  jural  cast  of  the  Roman  mind,  there  was  an  even  more 
specific  influence  from  Roman  law  itself.     The  Church  was 

I  Sidgwick,  History  of  Ethics,  p.  no. 


20  THE    CONCEPT    OF    LAW    IN    ETHICS. 

in  many  ways  the  successor  and  heir  of  the  Empire  and  it 
received  no  heritage  more  valuable  to  itself  or  for  modern 
civilization  than  the  civil  code  of  the  Eternal  City.  The  ec- 
clesiastical authorities  not  only  exerted  all  their  influence 
over  the  Teutonic  invaders  towards  maintaining  Roman  ju- 
risprudence, but  they  adopted  the  Roman  law  as  the  Canon 
law  of  the  Church. 

§  8.  All  of  these  legalizing  influences  had  had  time  to 
work  thfeir  full  effect  on  Christian  thought  when  a  century 
afCer  the  revival  of  the  scientific  study  of  Roman  law  at  Bo- 
logna '*  a  genuinely  philosophic  intellect,  trained  by  a  full 
study  of  the  greatest  Greek  thinker,  undertook  to  give 
complete  scientific  form  to  the  ethical  doctrines  of  the  Cath- 
olic Church."!  In  the  ethics  of  Thomas  Aquinas,  as  in- 
deed in  his  whole  philosophy  in  general,  there  is  an  attempt 
to  combine  and  harmonize  the  teachings  of  the  New  Testa- 
ment and  the  Church  Fathers  with  those  of  the  Greek  philoso- 
phers, or  more  specifically  still,  to  harmonize  Augustine  as 
the  representative  of  Christian  doctrine  with  Aristotle  as  *  the 
philosopher '  J^ar  excellence. 

In  this  system  the  notion  of  law  occupies  a  highly  prominent, 
if  not  the  first  place.  It  was  the  influence  of  Aristotle,  doubt- 
less, that  led  Aquinas  to  give  the  first  place  in  his  system  to  the 
doctrine  of  goods  and  virtues.  The  most  complete  statement 
of  his  moral  philosophy  is  given  in  the  first  part  of  the  sec. 
ond  division  of  the  Summa  Theologica.  He  begins  with  a 
discussion  of  the  chief  good  which  he  finds  to  be  the  blessed- 
ness of  union  with  God.  He  next  treats  of  the  virtues  and 
following  *  the  philosopher '  divides  them  into  intellectual  and 
moral.  The  moral  virtues  again  are  classified  into  the  natu- 
ral or  acquired  and  the  theologic  or  instilled.  Those  virtues 
which  may  be  acquired  by  the  natural  man  are  the  four  cardi- 
nal virtues  of  the  Greeks,  Prudence,  Temperance,  Fortitude^ 
and  Justice.  Besides  these,  as  necessary  to  the  highest 
end  of  man,  communion  with  God,  are  the  three  theologic 
virtues  which  are  instilled  in  men  by  divine  grace — Faith, 
Hope,  and  Love.     This  analysis  of  the  virtues  is  followed  by 

I  Sidgwick,  History  of  Ethics,  p.  no. 


THE    CONCEPT    OF    LAW    IN    ETHICS.  21 

a  subtle  discussion  of  sin  and  then  the  subject  of  law  is  taken 
up.^  UThomas  defines  law  as  "an  ordinance  of  reason  for  the 
common  good  which  is  promulgated  by  him  who  has  charge 
of  the  community."^  Four  kinds  of  law  are  distinguished — 
eternal,  natural,  human,  and  divine. 

The  eternal  law  is  the  divine  reason  of  the  supreme  gov- 
ernor of  the  universe  by  which  all  creatures,  rational  and 
irrational  are  ruled.  This  law,  in  so  far  as  it  applies  to  ra- 
tional creatures,  is  given  to  them  in  two  ways — naturally  and 
by  special  revelation.  Hence  the  two  kinds,  natural  and  di- 
vine, corresponding  to  the  two  modes  by  which  the  law  is 
made  known  to  men.  A  portion  of  the  eternal  law  God  has 
so  implanted  in  men's  minds  as  to  be  known  by  natural  rea- 
son. ^  This  is  the  law  of  nature.  All  rational  action  aims 
at  some  good.  The  first  principle,  therefore,  of  natural  law 
is  that  good  should  be  done  and  sought,  and  evil  avoided. 
Upon  this  principle  are  founded  all  the  other  precepts  of  the 
law  of  nature  for  the  sake  of  whatever  the  practical  reason 
naturally  apprehends  to  be  human  goods.*  Human  laws  are 
the  special  rules  of  particular  communities  deduced  by  the 
reason  from  the  precepts  of  natural  law.  The  process  of  the 
practical  reason  is  the  same  as  that  of  the  speculative  reason ; 
both  proceed  from  certain  principles  to  certain  conclusions. 
"Just  as  in  the  speculative  reason  from  indemonstrable  prin- 
ciples naturally  known  are  drawn  conclusions  of  different 
sciences,  with  the  knowledge  of  which  we  are  not  naturally 
endowed,  but  which  is  found  out  by  the  industry  of  reason  ; 
so  also  from  the  precepts  of  natural  law,  as  if  from  certain 

1  For  a  brief  account  of  Thomas's  ethics  see  Sidgwick,  History  of  Eth- 
ics, p.  140  ff;  also  Ziegler,  Oeschickte  der  Christlichen  Ethik^  p.  282,  ff. 

2  Thomas  Aquinas,  Smnma  Tkeologica,  Prima  Secundae,  Quaest.  xc, 
Art.  IV.  "  Et  sic  ex  quatuor  praedictis  potest  coUigi  definitio  legis,  quae 
nihil  est  aliud  quam  guaedam  rationis  ordinatio  ad  bonum  commune,  et 
ab  eo  qui  curam  communitaiis  habet,  promulgata." 

3  "  Promulgatio  legis  naturae  est  ex  hoc  ipso  quod  Deus  eam  mentibus 
hominum  inseruit  naturaliter  cognoscendam,"  Qii.  xc,  Art.  IV.  "Lex 
naturalis  nihil  aliud  est  quam  participatio  legis  aeternae  in  rationali  crea- 
tura."     Qu.  xci.,  Art.  n. 

4  Ibid.  Qu.  xciv.,  Art.  II. 


22  THE    CONCEPT    OF    LAW    IN    ETHICS. 

common  and  indemonstrable  principles,  it  is  necessary  that 
the  human  reason  proceed  to  more  particular  rules,  and 
these  are  human  laws  provide  the  other  conditions  deter- 
minative of  law  be   observed."^   --^ 

Unjust  laws,  i.  e.,  such  as  are  contrary  to  human  good,  are 
not  binding  in  the  forum  of  conscience,  though  for  the  sake 
of  avoiding  scandal  and  disturbance,  it  may  be  better  to  obey 
them.  But  laws  contrary  to  divine  good  are  in  no  wise  to 
be  observed.2  We  ought  to  obey  God  rather  than  man.  All 
inferior  governors  derive  their  authority  from  the  eternal  law 
of  the  supreme  governor.  Human  law,  therefore,  in  so  far 
as  it  accords  v/ith  right  reason,  is  derived  from  eternal  law.^ 

Obedience  to  the  law  of  nature  suffices  for  attaining  to  the 
natural  or  acquired  virtues.  Since,  however,  man  is  ordained 
to  an  end  higher  than  the  natural,  it  is  necessary  for  the 
direction  of  human  Hfe  that  we  have  besides  natural  and 
human  law  divine  law  given  by  God  to  men  by  special  reve- 
lation. This  divine  law  is  double^ — the  one  revealed  in  the 
Old  Testament  through  the  instrumentality  of  angels,  the 
other  in  the  New  Testament  by  God  himself  made  man. 
The  old  law  seeks  sensible  and  terrestrial  good,  the  new  one 
intelligible  and  celestial  good.  The  first  summoned  the  peo- 
ple to  the  earthly  kingdom  of  the  Canaanites,  the  latter  to 
the  kingdom  of  heaven.  The  old  promises  temporal  things, 
the  new  promises  eternal  life.  The  old  controls  the  hand, 
the  new  the  mind.  The  motive  of  the  old  was  fear,  of  the 
new  love.  Of  the  old  law  the  ceremonial  and  judicial  pre- 
cepts are  no  longer  obligatory,  but  the  moral  precepts,  par- 
ticularly as  given  in  the  Decalogue,  are  still  binding 
upon  Christians.  The  new  law  is  variously  designated 
as  the  law  of  the  Gospel,  law  of  love,  law  of  grace,  etc.  Be- 
sides giving  commands  it  also  confers  upon  the  faithful 
strength  for  the  fulfilment  of  these  commands.     The  divine 

1  Ibid.  Qu.  xci.,  Art.  III. 

2  Ibid.  Qu.  xcvi.,  Art.  IV. 

3  Ibid.  Qu.  xciii.,  Art.  III. 

4  These  two  laws  are  not  related  to  each  other  as  two  species,  e.  g., 
horse  and  cow,  but  as  the  imperfect  to  the  perfect,  e.  g.,  boy  and  man. 
Qu.  xci  ,  Art.  V. 


THE    CONCEPT    OF    LAW    IN    ETHICS.  23 

law  is  ordained  to  secure  the  communion  of  men  with  God. 
To  its  positive  commands  "without  which  the  order  of  virtue, 
which  is  the  order  of  reason,  could  not  be  observed,"  it  adds 
as  counsels  the  monastic  virtues  of  poverty,  celibacy,  and 
obedience,  which,  though  not  obligatory,  afford  a  superior 
means  for  attaining  to  the  perfect  life.i 

In  Thomas  Aquinas  we  have  the  culmination  and  epitome 
of  Scolasticism,  "  the  crowning  result  of  the  great  construc- 
tive effort  of  mediaeval  philosophy."  2  His  influence  has 
been  very  great,  both  on  the  theology  of  the  Catholics,  by 
whom  he  is  still  regarded  as  the  official  philosopher  of  the 
Church,  and  also  on  the  theology  of  Protestants.  The  part 
which  the  jural  view  of  morality  plays  in  his  ethical  system 
illustrates  very  fairly  the  position  of  this  view  in  Christian 
ethics  in  general.  The  Decalogue,  with  its  never-faiUng  ap- 
peal to  the  moral  consciousness,  has  been  to  Christians  and 
to  all  who  have  come  under  the  influence  of  Christianity  the 
preeminent  summary  of  moral  principles,  and,  being  expressed 
as  the  command  of  God,  it  has  appeared  as  a  moral  law. 
Thus  the  notion  of  morality  as  a  code  of  laws  has  been  deeply 
stamped  on  popular  thought  and  in  only  a  slightly  less  de- 
gree on  the  would  be  scientific  systems  of  ethical  philos- 
ophers. Morality  and  obedience  to  the  Ten  Commandments 
are  to  many  almost  synonymous  terms,  and  this  fact,  together 
with  the  other  influences  already  mentioned,  has  given  a 
prominently  jural  form  to  the  ethics  of  the  Church  in  all 
ages — in  modern  times  as  well  as  in  the  Middle  Ages. 

1  "  Lex  divina  convenienter  proponit  praecepta  de  actibus  omnium  vir- 
tutum,  .  .  .  but  yet  quaedam  sine  quibus  ordo  virtutis,  qui  est  ordo 
rationis,  observari  non  potest,  cadunt  sub  obligatione  praecepti ;  quae- 
dam vero  quae  pertinent  ad  bene  esse  virtutis  perfectas,  cadunt  sub  ad- 
monitione  consilii."     Qu.  c,  Art.  II. 

2  Sidgwick,  History  of  Ethics,  p.  147, 


24  THE    CONCEPT    OF    LAW    IN    ETHICS. 


CHAPTER 


§  9.  Having  thus  briefly  sketched  the  influence  of  jural 
concepts  in  ancient  and  mediaeval  ethics,  we  come  now  to 
modern  systems.  Mediaeval  philosophy  was  characterized 
by  submission  to  authority — on  the  one  hand  to  the  Church, 
and  on  the  other  to  Aristotle.  Modern  philosophy  yields  to 
no  authority,  but  facing  freely  the  problems  of  the  universe, 
seeks  a  solution  which  shall  force  irresistible  conviction  upon 
every  intelligence.  In  the  modern  attempt  to  establish  mo- 
rality on  an  independent  foundation,  /.  ^.,  independent  of  spe- 
cial revelation  and  of  ecclesiastical  authority,  the  notion  of 
the  law  of  nature  was  the  first  principle  seized  upon.  If 
we  examine  the  moral  philosophy  of  Aquinas  two  points  pre- 
sent themselves  on  which  conceivably  an  independent,  ra- 
tional morality  might  be  founded — (i)  the  acquired  virtues, 
(2)  the  law  of  nature.  It  was  the  latter  of  these  principles 
which  actually  served  as  the  starting  point  of  modern  ethics. 

After  the  combined  influences  of  Renaissance  and  Refor- 
mation had  effectually  undermined  the  traditional  confidence 
in  the  old  authorities,  the  need  of  a  new  ethics  was  first  felt 
in  politics.  Wherever  there  was  a  difference  of  faith  be- 
tween king  and  subjects,  a  new  question  as  to  the  duties  of 
allegiance  was  raised,  and  now  that  the  general  supremacy 
of  the  Pope  over  the  nations  was  no  longer  recognized  a  new 
theory  was  required  to  determine  the  relations  and  duties  of 
independent  states  to  one  another.  It  was  for  the  purpose 
of  solving  the  problems  arising  from  the  changed  relations 
of  nations  that  Grotius  composed  his  epoch-making  work, 
De  Jure  Belli  ct  Paeis^ — the  work  which  is  universally  recog- 

I  Paris,  1625. 


THE    CONCEPT    OF    LAW    IN    ETHICS.  25 

nized  as  the  foundation  of  the  modern  system  of  Interna- 
tional Law.  The  basis  on  which  he  erected  his  system  was 
the  old  Stoic  theory  of  the  law  of  nature  as  it  had  been 
handed  down  by  the  Roman  jurists  and  ecclesiastical  mor- 
alists. 

Grotius  defines  natural  law  as  the  "  dictate  of  Right  Rea- 
son, indicating  that  an  act,  from  its  agreement  or  disagree- 
ment with  man's  rational  and  social  nature,  is  morally  dis- 
graceful or  morally  necessary."  ^  Here  we  find  the  law  of 
nature  defined  in  a  manner  broad  enough  to  include  a  moral 
as  well  as  a  legal  code.  According  to  the  theory  of  Grotius, 
though  God  is  the  creator  of  nature  and  her  laws,  yet  the 
nature  of  things  when  once  created  remains  ever  after  un- 
changeable and  unaffected  by  the  divine  will.  In  the  nature 
of  man,  then,  by  the  use  of  the  reason,  we  may  find  the  fun- 
damental principles  of  morals  and  jurisprudence.  Now  man 
is  distinguished  from  other  animals  by  his  peculiar  capacity 
for  society,  hence  from  the  nature  of  man  as  a  social  being 
may  be  deduced  the  principles  which  should  govern  his  con- 
duct in  society.  The  utility  of  social  laws  is  also  recognized 
as  a  secondary  principle.  But  the  utility  is  only  secondary. 
Even  if  there  were  no  advantage  to  be  attained  from  it,  man's 
very  nature  as  social  would  require  him  to  submit  to  the  laws 
of  society.  Since  now  these  are  laws  of  man's  nature  itself, 
they  are  binding  upon  him  in  the  natural  state  before  he  has 
united  with  his  fellows  and  by  an  ** express  or  tacit  pact" 
formed  a  state.  Just  as  individuals,  while  in  the  state  of  na- 
ture and  as  yet  subject  to  no  sovereign  power,  were  never- 
theless bound  by  the  laws  of  nature,  so  modern  nations  which 
are  related  to  each  other  like  persons  independent  of  any  au- 
thority, are  still  under  obligation  to  observe  the  laws  of  na- 
ture in  their  dealings  with  one  another.^ 

r  Sidgwick,  History  of  Ethics,  p.  160. 

2  "The  grandest  function  of  the  Law  of  Nature  was  discharged  in  giv- 
ing birth  to  modern  International  Law  and  to  the  modern  Law  of  War." 
Maine,  Ancient  Lavj,  p.  96. 

For  a  brief  account  of  Grotius  and  his  place  in  the  history  of  ethics  see 
Jodl,  Geschichte  der  Eihik  in  der  neueren  Philosofhie,  Bd.  i.,  Cap.  III., 
Absch.  5. 


26  THE    CONCEPT    OF    LAW    IN    ETHICS. 

§  10.  The  theory  of  the  state  propounded  by  Thomas 
Hobbes  may  be  regarded  as  the  beginning  of  independent 
ethics  in  England.  Beyond  a  few  pregnant  suggestions 
Bacon  had  done  little  in  moral  philosophy.  The  current 
view  of  the  law  of  nature  furnished  Hobbes  with  a  starting 
point.  But  while  employing  much  the  same  language  his 
theory  of  morals  is  in  essence  almost  the  antithesis  of  that 
of  Grotius.  In  both  men  the  aim  was  to  establish  a  theory 
of  the  state,  and  they  concern  themselves  with  ethics  only 
so  far  as  is  necessary  for  this  purpose.  While  the  chief  aim 
of  Grotius's  work  was  to  determine  the  relations  of  independ- 
ent states,  Hobbes  devoted  himself  to  determining  the  rela- 
tions of  sovereign  and  subject  in  the  same  state.  Both  seek 
a  foundation  for  their  theories  in  morals,  but  while  Grotius* 
finds  that  in  the  social  impulses  of  man's  nature,  itself, 
Hobbes  regards  man  by  nature  as  impelled  only  by  self- 
interest  and  all  moral  norms  as  springing  from  the  state  and 
the  civil  law.  The  ethical  speculations  involved  in  Hobbes's 
theory  of  the  state  and  the  attacks  called  out  in  opposition 
determined  the  development  of  moral  philosophy  in  England 
for  nearly  a  century. 

Ths  psychological  basis  of  Hobbes's  theory  is  frankly  ego- 
tistic. "Of  the  voluntary  acts  of  every  man  the  object  is 
some  Good  to  himself."  ^  Since  man  naturally  seeks  only 
his  own  satisfaction  the  original  state  of  nature  was  a  condi- 
tion of  war  of  every  man  against  every  other  man.  In  this 
state  of  affairs  there  was  no  law  and  no  morality.  "  The  de- 
sires and  other  passions  of  man  are  in  themselves  no  sin. 
No  more  are  the  actions  that  proceed  from  those  passions, 
till  they  know  a  law  that  forbids  them ;  which  till  laws  be 
made  they  cannot  know,  nor  can  any  law  be  made  till  they 
have  agreed  upon  the  person  that  shall  make  it.  .  .  .  To 
this  war  of  every  man  against  every  man,  this  also  is  conse- 
quent ;  that  nothing  can  be  unjust.  The  notions  of  right 
and  wrong,  justice  and  injustice,  have  there  no  place.  Where 
there  is  no  common  power,  there  is  no  law  ;   where  no  law, 

I  Hobbes,  Leviathan^  p.  66.  (I  quote  from  Thornton's  reprint,  giving 
the  pages  of  the  original  edition  of  165 1.) 


THE    CONCEPT    OF    LAW    IN    ETHICS.  27 

no  injustice.  Force  and  Fraud  are  in  war  the  two  cardinal 
virtues.  Justice  and  injustice  are  none  of  the  faculties,  nei- 
ther of  the  body  nor  mind."  ^  Reason,  however,  is  no  less 
of  the  nature  of  man  than  passion,  and  since  this  is  the  same 
in  all  men,  directing  them  to  seek  their  own  good,  there  can 
be  no  other  law  of  nature  than  reason.  Accordingly  Hobbes 
defines  the  law  of  nature  as  a  ''precept,  or  general  rule, 
found  out  by  reason,  by  which  a  man  is  forbidden  to  do  that 
which  is  destructive  of  his  life,  or  taketh  away  the  means  of 
preserving  the  same ;  and  to  omit  that  by  which  he  thinketh 
it  may  be  best  preserved."  ^  From  this  definition  is  deduced 
the  fundamental  law  of  nature  ^  to  seek  peace  and  follozv  it, 
and  failing  in  this  '  by  all  means  we  can  to  defend  ourselves! 
Such  rights  as  being  retained  hinder  the  peace  of  mankind 
ought  to  be  given  up,  if  we  can  be  assured  that  others  will 
do  the  same.  This  gives  us  a  second  law  of  nature,  and 
from  it  follows  the  third,  which  is  '  that  men  perform  their 
covenants  made.'  ^  The  validity  of  the  covenant  depends 
upon  the  assurance  that  it  will  be  observed.  '  Therefore  be- 
fore the  names  just  and  unjust  can  have  place,  there  must 
be  some  coercive  power  to  compel  men  equally  to  the  per- 
formance of  their  covenants,  by  the  terror  of  some  punish- 
ment greater  than  the  benefit  they  expect  by  the  breach  of 
their  covenant  ;  .  .  .  and  such  power  there  is  none  be- 
fore the  erection  of  a  commonwealth.'  Justice  is  the  'keep- 
ing of  covenant,'  and,  as  this  is  a  rule  of  reason  by  which 
we  are  forbidden  to  do  anything  destructive  to  our  life,  it  is 
consequently  a  law  of  nature. 

From  these  primary  laws  of  nature  Hobbes  goes  on  to  de- 
duce a  number  of  others ;  in  fact  he  makes  nineteen  in  all, 
but  to  *  leave  all  men  unexcusable,  they  have  been  contracted 
into  one  easy  sum,  intelligible  even  to  the  meanest  capacity ; 
and  that  is,  Do  not  that  to  another  which  thou  wouldest 
not  have  done  to  thyself.'  ^     These  laws  are  always  binding 

1  Ibid.  pp.  62,  63. 

2  Ibid.  p.  64. 

3  Ibid.  p.  71. 

4  Ibid.  p.  79. 


28  THE    CONCEPT    OF    LAW    IN    ETHICS. 

on  our  desires  and  intentions,  but  we  are  under  no  obligation 
to  put  them  in  act  unless  we  have  a  reasonable  assurance 
that  others  will  observe  the  same  laws  towards  us.  'The 
laws  of  nature  are  immutable  and  eternal,*  for  these  are  the 
precepts  of  peace  and  '  it  can  never  be  that  war  shall  pre- 
serve life  and  peace  destroy  it.'  i  All  of  these  precepts  may 
be  termed  indifferently  laws  of  nature,  as  being  the  dictates 
of  natural  reason,  or  moral  laws  *  because  they  concern  men's 
manners  and  conversations  one  toward  another,'  or,  again,  di- 
vine laws  '  in  respect  of  the  author  thereof,  God  Almighty.'2 
The  true  doctrine  of  the  laws  of  nature  Hobbes  declares  to 
be    'the  true  and  only  moral  philosophy.' 

In  order  that  men  may  enjoy  the  blessings  of  peace  as  nat- 
ural reason  dictates,  there  must  be  a  sovereign  power  capable 
of  enforcing  obedience  to  compacts.  The  only  way  to  erect 
such  a  power  is  by  mutual  consent  to  confer  the  power  and 
strength  of  all  upon  one  man  or  upon  one  assembly  of  men 
that  may  reduce  all  their  wills  unto  one  will.  In  this  way  a 
real  unity  of  them  all  is  established  in  one  and  the  same  per- 
son.3  '  The  right  of  all  sovereigns  is  derived  originally  from 
the  consent  of  every  one  of  those  that  are  to  be  governed ; 
whether  they  that  choose  him  do  it  for  their  common  defence 
against  an  enemy,  as  when  they  agree  among  themselves  to 
appoint  a  man  or  assembly  of  men  to  protect  them ;  or 
whether  they  do  it  to  save  their  lives  by  submission  to  a  con- 
quering enemy.'  *  After  the  sovereign  power  is  once  estab- 
lished it  is  the  duty  of  every  one  to  yield  implicit  obedience 
to  it  in  all  matters.  The  sovereign  is  under  obligation  only 
to  God  and  the  laws  of  nature.  The  civil  laws  which  he  in- 
stitutes are  to  determine  without  question  the  conduct  of  the 
subject.  They  are  to  him  the  ultimate  standard  of  right  and 
wrong,  good  and  evil.     *  By  the  law  of    nature   the  civil  sov- 

I  Besides  these  laws  of  nature  which  dictate  peace  and  are  necessary  to 
the  existence  of  civil  society,  whatever  tends  '  to  the  destruction  of  par- 
ticular men  as  drunkenness  and  all  other  parts  of  intemperance,'  Hobbes 
regards  as  forbidden  by  the  law  of  nature. 
—  2  Hobbes,  Elements  of  Law,  Pt.  I,  Chap.  i8. 

3  Leviathan,  p.  87. 

4  Ibid.  p.  314. 


THE    CONCEPT    OF    LAW    IN    ETHICS.  29 

ereign  in  every  commonwealth  is  the  head,  the  source,  the 
root,  and  the  sun  from  which  all  jurisdiction  is  derived  '  ^ — 
ecclesiastical  as  well  as  political.  It  is  heresy  for  a  private 
person  to  maintain  any  doctrine  prohibited  by  the  state.^ 
Thus  while  the  laws  of  nature  served  Hobbes  as  the  theoret- 
ical basis  of  the  state,  the  criterion  of  morality  for  the  indi- 
vidual, according  to  his  doctrine,  is  the  positive  civil  law.  To 
obey  the  laws  of  the  state  is  the  whole  duty  of  man,  ethical 
and  religious. 

In  a  double  way,  therefore,  the  ethics  of  Hobbes  takes  on 
a  jural  aspect  in  its  fundamental  theory,  being  based  on  the 
laws  of  nature,  and  in  its  practical  outcome  referring  all  de- 
terminations of  duty  to  the  civil  law.  The  jural  elements  in 
this  theory  are  widely  different  from  the  divine  commands 
of  Paley's  system  or  the  categorical  imperative  of  Kant's. 
In  fact  the  laws  of  nature  are  for  Hobbes's  jural  only  in  the 
mode  of  expression  and  not  at  all  in  the  concept  itself.  The 
phrase  '  law  of  nature  '  was  one  held  in  high  respect  by  jurists, 
ecclesiastics,  and  rationalists.  It  was,  therefore,  a  very  ad- 
vantageous phrase  for  the  founder  of  a  new  theory  of  the 
state  to  have  continually  in  his  mouth.  Hobbes  himself  is 
careful  to  state  that  he  does  not  in  reality  attach  any  jural 
significance  to  the  term.  At  the  end  of  the  two  chapters* 
of  the  Leviathan,  which  he  devotes  particularly  to  the  defini- 
tion and  deduction  of  the  natural  laws,  he  says : 

"  These  dictates  of  reason  men  use  to  call  by  the  name  of 
laws,  but  improperly,  for  they  are  but  conclusions,  or  theo- 
rems concerning  what  conduceth  to  the  conversation  and  de- 
fense of  themselves ;  whereas  law  properly  is  the  word  of 
him  that  by  right  hath  command  over  others.  But  yet  if  we 
consider  the  same  theorems  as  delivered  in  the  Word  of  God, 
that  by  right  commandeth  all  things,  then  are  they  properly 
called  laws."**  The  reference  of  the  laws  to  God  serves 
simply  to  explain  the  term,  and  perhaps  is   intended  also  to 

1  Ibid.  p.  312. 

2  Ibid.  p.  317. 

3  XIV.  and  XV. 

4  Ibid.  p.  80.         y 


30  THE    CONCEPT    OF    LAW    IN    ETHICS. 

conciliate  religious  sentiments,  but  it  is  quite  outside  the 
line  of  argument  of  the  theory  itself. 

§  II.  Such  a  system  as  that  of  Hobbes's  *in  which  the 
only  fixed  positions  were  selfishness  everywhere  and  un- 
limited power  somewhere'  could  but  excite  the  strongest 
opposition  from  the  moral  sense  and  liberty  loving  spirit  of 
the  English  people.  While  the  absoluteness  of  the  sovereign 
power  offended  the  liberals  in  politics,  the  making  of  self- 
regarding  motives  the  only  determinants  of  conduct  and  the 
civil  law  the  standard  of  good  and  evil  aroused  the  antago- 
nism of  moral  philosophers.  Each  of  these  three  points,  the 
absolutism  of  the  state,  the  egoism  and  relativism  of  morality 
called  out  answers  from  moralists.  Locke  championed  the 
natural  rights  of  the  individual  citizen,  Cumberland  main- 
tained that  the  common  good  of  all  is  the  supreme  end  and 
standard  of  conduct,  and  Cudworth  taught  that  moral  prin- 
cipals are  eternal  and  immutable. 

In  the  writings  of  Cudworth,  who  was  the  foremost  of  the 
Cambridge  Platonists,  we  find  a  noteworthy  opposition  to 
jural  conceptions  of  morality.  In  his  view  neither  civil  law 
nor  divine  law  can  determine  morality.  Good  and  evil  are 
essentially  and  eternally  distinct,  and  no  mere  will,  not  even 
that  of  God  Himself,  can  alter  this  distinction.  Surely  the 
transitory  and  changeable  laws  of  the  state  cannot  be  the 
source  of  that  which  in  its  nature  is  eternal  and  unchange- 
able. Moral  truths  are  immutable  ideas  of  the  divine  reason 
and,  like  the  truths  of  mathematics,  are  apprehended  by  the 
human  reason,  and  are,  therefore,  equally  valid  for  all  ra- 
tional beings.  In  the  ethics  of  Locke  and  Cumberland,  how- 
ever, we  find  the  jural  concepts  again  regnant.  Both  of  these 
philosophers  treated  morality  as  a  code  of  laws  promulgated 
by  God,  revealed  in  the  natural  reason  and  sanctioned  by 
rewards  and  punishments.  ''Moral  good  and  evil,"  says 
Locke,  "  is  only  the  conformity  or  disagreement  of  our  volun- 
tary actions  to  some  law,  whereby  good  and  evil  is  drawn  on 
us  by  the  will  and  power  of  the  law-maker;  which  good 
and  evil,  pleasure  or  pain,  attending  our  observance  or 
breach  of  the  law,  by  the  decree  of  the  law-maker,  is  that 


THE    CONCEPT    OF    LAW    IN    ETHICS.  3 1 

we  call  reward  and  punishment. "1  These  sanctions  are  in- 
sisted upon  by  Locke  as  absolutely  essential  to  morality.  It 
is  only  *  by  rewards  and  punishments  that  will  overbalance  the 
satisfaction  any  one  shall  propose  to  himself  in  the  breach 
of  the  law,'  that  moral  laws  have  the  power  to  curb  and  re- 
strain inordinate  desires.^  Locke  distinguished  three  classes 
of  laws :  (i)  divine  laws,  (2)  civil  laws,  (3)  laws  of  opinion  or 
reputation.  Virtue  and  vice  in  general  are  the  names  given 
to  such  actions  as  receive  the  approval  or  disapproval  of 
public  opinion,  but  when  these  names  '  stand  for  actions  in 
their  own  nature  right  and  wrong,'  then  they  are  *  coincident 
with  the  divine^  law.'^  The  moral  laws  are  not  innate  in 
the  human  inind,  but  they  are  'knowable  by  the  light  of 
nature,'  and  it  is,  therefore,  'our  own  fault  if  we  come  not 
to  a  certain  knowledge  of  them.'^  For  Locke,  as  for  all  the 
philosophers  of  the  17th  century,  mathematics  was  the 
ideal  science,  and  mathematical  demonstration  the  type  of 
certainty.  Moral  truths  he  believed  to  be  equally  necessary 
and  capable  of  demonstration,  though  on  account  of  their 
complexity  and  the  impossibility  of  presenting  them  to  the 
eye  by  diagrams,  their  demonstration  is  more  difficult.^ 

Cumberland^  like  Locke  regarded  morality  as  a  code  of 
laws  and  as  capable  of  demonstration  as  mathematics.  The 
only  respect  in  which  he  is  of  distinctive  interest  in  this 
connection  is  his  presentation  of  the  general  welfare  as  the 
fundamental  law  of  nature  and  its  essential  agreement  with 
individual  interest,  in  this  attacking  the  universal  selfishness 
of  Hobbes's  system.  A  law  of  nature  in  his  view  is  "  a 
proposition  proposed  to  the  observation  of  or  impressed  upon 
the  mind  with  sufficient  clearness  by  the  nature  of  things, 
from  the  will  of  the  first  cause,  which  points  out  that  pos- 
sible action  of  a  rational  agent  which  will  chiefly   promote 

1  Locke,  Essay  concerning  Human  Understanding,  Bk.  II.,  Ch.  28,  §  5. 

2  Ibid.  Bk.  I.,  Ch.  3,  §  13. 

3  Ibid.  Bk.  IL,  Ch.  28,  §  10. 

4  Ibid.  Bk.  I.,  Ch.  3,  §  I. 

^  5  Ibid.  Bk.  IV.,  Ch.  3,  §  18,  19. 

6  His  chief  work,  De  Legibus  Naturae  (1672)  shows  him  to  have  been 
greatly  influenced  by  Grotius. 


32  THE    CONCEPT    OF    LAW    IN    ETHICS. 

the  common  good,  and  by  which  only  the  entire  happiness 
of  particular  persons  can  be  obtained."  "  The  greatest  be- 
nevolence of  every  rational  agent  towards  all  forms  the  hap- 
piest state  of  every  and  of  all  the  benevolent,  as  far  as  in 
their  power ;  and  it  is  necessarily  requisite  to  the  happiness 
which  they  can  attain,  and  therefore  the  common  good  is 
the  supreme  law."i  As  Hobbes  is  the  founder  of  egoistic 
hedonism  in  English  ethics,  so  Cumberland  is  the  founder 
of  universalistic  hedonism. 

The  law  of  God  which  formed  the  ultimate  authority  in 
morals  for  Locke  and  Cumberland  was  considered  as  know- 
able  by  natural  reason  and  is  thus  to  be  distinguished  from 
the  divine  law  of  the  Hebrews  and  mediaeval  moralists. 
This  distinction  might  be  expressed  by  calling  the  ethics  of 
former  theologic  juralism,  the  latter  Hebraic  juralism. 

§  12.  The  most  thorough  going  presentation  of  theologic 
juralism  in  moral  philosophy,  the  culmination  of  the  ethical 
theories  of  'natural  theology'  as  taught  in  the  17th  and 
1 8th  centuries  is  found  in  the  system  of  Paley.  With  him 
the  law  of  God  is  no  mere  incidental  factor  or  theoretic 
basis,  but  the  moving  principle  of  the  whole  system.  The 
moral  law  is  conceived  in  complete  analogy  with  civil  law. 
It  is  the  express  command  of  a  lawgiver  who  has  the 
authority  and  power  to  enforce  his  will  by  rewards  and  pun- 
ishments. To  be  obliged  is  to  be  *  urged  by  a  violent  motive 
resulting  from  the  command  of  another,'  and  just  as  we  should 
not  be  obliged  to  obey  the  civil  law  except  for  the  rewards 
and  punishments,  the  pleasures  and  pains  dependent  upon  our 
obedience,  *so  neither  should  we  without  the  same  reason,  be 
obliged  to  do  what  is  right,  to  practice  virtue,  or  to  obey  the 
commands  of  God. '2  Between  prudence  and  duty  'the  dif- 
ference and  the  only  difference'  is  that  *in  the  one  case  we 
consider  what  we  shall  gain  or  lose  in  the  present  world,  in 
the  other  case  we  consider  also  what  we  shall  gain  or  lose 
in  the  world  to  come.'^ 

1  Quoted  from  Porter's  appendixto  the  translation  of  Uberweg's  History 
of  Philosophy,  Vol.  II.,  p.  362. 

2  VzXty ,  Principles  of  Moral  and  Political  Philosophy ^  Bk.  II.,  Ch.  2. 
3lbid.  Bk.  II.,  Ch.  3. 


THE    CONCEPT    OF    LAW    IN    ETHICS.  33 

Not  only  are  the  moral  motives,  according  to  Paley,  of  a 
purely  utilitarian  nature,  but  the  moral  law  itself  is  to  be  dis- 
covered by  the  same  principle.  To  learn  this  law  we  need 
only  inquire  what  is  the  will  of  God,  for  moral  obligation  de- 
pends upon  God's  will  and  right  signifies  consistency  with 
this  same  will.i  Since  now  the  predominant  tendency  of  the 
contrivance  indicates  the  disposition  of  the  designer,  we  may 
conclude  that  God  wills  and  wishes  the  happiness  of  his 
creatures.  In  order,  therefore,  by  the  light  of  nature  to 
come  at  the  will  of  God  concerning  any  action,  it  is  only 
necessary  for  us  to  inquire  into  the  tendency  of  this  action 
*to  promote  or  diminish  the  general  happiness.'^  Paley's 
whole  theory,  both  in  its  jural  and  in  its  utilitarian  aspects, 
is  summed  up  concisely  and  completely  in  his  definition  of  vir- 
tue :  "  The  doing  good  to  mankind,  in  obedience  to  the 
will  of  God,  and  for  the  sake  of  everlasting  happiness."^ 

In  the  ethical  systems  thus  far  considered  we  have  found 
the  law  of  nature,  the  law  of  God  in  two  forms,  and  the  law 
of  the  state  playing  a  more  or  less  prominent  part.  Natural 
juralism,  Hebraic  juralism,  theologic  juralism  and  civil  ju- 
ralism  have  one  element  in  common ;  they  all  involve  the 
notion  of  a  lawgiver  apart  from  man  who  imposes  laws  upon 
him.  These  systems,  therefore,  may  all  be  designated  as 
heteronomoiis .  We  have  now  to  consider  a  system  which  in 
this  respect  stands  out  in  signal  contrast  to  all  of  the  fore- 
going, a  system  which  finds  the  moral  law  in  the  man  him- 
self and  which  in  distinction  from  the  rest  we  may  call  au- 
tonomus.  The  claim  of  Kant  to  be  the  Copernicus  of  spec- 
ulative philosophy  may  be  also  admitted  in  the  field  of  prac- 
tical philosophy.  Just  as  he  found  that  space  and  time  and 
the  laws  of  the  physical  world  are  not  given  to  us  from  with- 
out but  are  imposed  by  us  upon  the  world  of  phenomena,  so  he 
showed  that  the  moral  laws  are  not  given  to  us  by  God  or 
the  state,  but  every  man  by  virtue  of  his  own  rational  nature 
imposes  these  laws  upon  himself. 

1  Ibid.  Bk.  II.,  Ch.  9. 

2  Ibid.  Bk.  II.,  Ch.  4,  5. 

3  Ibid.  Bk.  I.,  Ch.  7. 


34  THE    CONCEPT   OF    LAW   IN    ETHICS. 

§  13.  In  the  same  year  (1785)  in  which  Paley's  Moral 
Philosophy  appeared,  Kant  published  the  first  of  his  great 
ethical  works,  Grundlegung  zur  Metaphysik  der  Sitten.  The 
contrast  between  these  two  works  is  one  of  the  most  strik- 
ing presented  in  the  whole  history  of  speculative  philosophy. 
Compare  with  Paley's  definition  of  virtue,  **the  doing  good 
to  mankind  in  obedience  to  the  will  of  God  and  for  the  sake 
of  everlasting  happiness,"  the  statement  of  Kant  that  in  or- 
der for  an  action  to  be  morally  good  **  it  is  not  enough  that 
it  conform  to  the  moral  law  but  it  must  be  done  for  the  sake 
of  the  law."i 

With  Paley  the  source  of  the  law  is  God,  the  end  is  human 
good,  the  motive  everlasting  happiness  ;  with  Kant  the  source 
of  the  law  is  the  pure  reason,  the  end  is  not  to  be  taken  into 
account  at  all,  and  the  only  moral  motive  is  reverence  for  the 
law  its  elf < 

Had  nature  intended  man  for  happiness  only,  instinct  would 
have  been  all  sufficient,  but  reason  has  a  higher  purpose.  Its 
office  is  to  produce  a  will  that  shall  be  good  not  only  as  a 
means  to  something  else,  but  good  in  itself.  In  fact  nothing 
in  the  world  can  be  conceived  as  unconditionally  good  but 
the  Good  Will.^  All  other  goods  are  but  means  only.  The 
good  will  is  an  end  in  itself  and  to  the  production  of  such  a 
will  reason  is  absolutely  necessary.  The  moral  law  must 
have  its  seat  in  the  pure  reason.  None  of  the  peculiar  cir- 
cumstances of  man's  nature  are  to  be  taken  into  account  lest 
some  empirical  taint  sully  the  a  priori  purity  of  the  law.  That 
law  only  is  truly  moral  which  is  valid  for  every  rational  be- 
ing as  such.  Hence  it  is  the  pure  reason  alone  apart  from 
all  the  interests  of  particular  beings  that  can  be  the  lawgiver. 
Thus  the  law  is  imposed  by  each  man  upon  himself  and  is  at 
the  same  time  valid  for  all  rational  beings.  Only  such  a  law 
can  command  the  respect  of  men,  and  however  they  may  fail 
to  obey  it,  they  nevertheless  instinctively  reverence  it.  Were 
the  law  conditioned  by  inclination  or  imposed  by  any  power 

1  From  the  preface  to  the  Grundlegung  zur  Metaphysik  der  Sitten, 
Abbott's  translation  of  Kant's  ethical  works,  p.  4. 

2  Ibid.  p.  9. 


THE    CONCEPT    OF    LAW    IN    ETHICS.  35 

outside  of  ourselves,  obedience  to  it  would  produce  only  le- 
gality and  not  morality.  To  be  of  moral  worth  an  act  must 
be  done  from  duty.  Even  though  the  effects  of  the  action 
be  quite  in  accord  with  duty,  it  cannot  be  regarded  as  moral 
unless  it  is  done  solely  from  duty  or  respect  for  the  law.  The 
act  done  from  duty  possesses  the  same  moral  worth  whether 
its  effects  be  useful  or  injurious.  Particularly  must  the  act 
have  no  regard  to  inclinations.  Indeed  it  is  only  in  cases 
where  we  act  directly  contrary  to  inclinations  that  we  can  be 
perfectly  sure  that  we  are  acting  morally  at  all.  If  inclina- 
nation  and  duty  command  the  same  act  there  will  be  a  doubt 
whether  we  do  the  act  solely  from  duty,  and  it  is  only  in  so 
far  as  done  from  duty  alone  that  the  act  is  worthy  to  be  des- 
ignated as  moral. 

Our  knowledge  of  the  moral  law,  the  principles  of  the  prac- 
tical reason  is  obtained  just  like  the  knowledge  of  all  rational 
principles.  "  We  become  conscious  of  pure  practical  laws 
just  as  we  are  conscious  of  pure  theoretical  principles,  by  at- 
tending to  the  necessity  with  which  reason  prescribes  them, 
and  to  the  Telimination  of  all  empirical  conditions."  i  "The 
moral  law  is  given  as  a  fact  of  pure  reason  of  which  we  are 
a  priori  conscious,  and  which  is  apodictically  certain,  though 
it  be  granted  that  in  experience  no  example  of  its  exact  ful- 
filment can  be  found."  ^  "All  moral  conceptions  have  their 
seat  and  origin  completely  a  priori  in  the  reason  and  that, 
moreover,  in  the  commonest  reason  just  as  truly  as  in  that 
which  is  in  the  highest  degree  speculative."  3 

The  formula  for  the  rational  principle  which  is  to  deter- 
mine the  will  of  an  imperfect  being  is  called  an  imperative. 
If  the  imperative  commands  an  action  good  only  as  a  means 
to  something  else,  it  is  called  a  hypothetical  imperative.  If, 
however,  the  action  is  conceived  as  good  in  itself  and  con- 
sequently as  being  necessarily  the  principle  of  a  will  which 
of  itself  conforms  to  reason,  then  it  is  categorical.     Hypo- 

1  Kritik  der  praktischen  Vernunft,  Bk.  I.,  Ch.  I,  §  VI.,  Abbott's  trans- 
lation, p.  1 18. 

2  Ibid.  p.  136. 

3  Grundlzgung  zur  Metafhysik  der  Sitten,  trans,  p.  28. 


36  THE    CONCEPT    OF    LAW    IN    ETHICS. 

thetical  imperatives  are  rules  of  skill  or  counsels  of  prudence; 
only  a  categorical  imperative  can  be  a  law  of  morality.  Duty 
as  a  practical,  unconditional  necessity  of  action  must  hold 
good  for  all  rational  beings  and  so  for  all  human  wills.  The 
fundamental  formula  of  the  moral  law,  the  categorical  im- 
perative is  :    "Act  so  that  the  maxim  of  thy  will  can  always 

V  at  the  same  time  hold  good  as  a  principle  of  universal  legis- 
lation .  "  ^  or,  in  other  words,  make  a  law  which  you  could 
will  to  be  universal  the  rule  of  your  conduct.  Since  man 
and  generally  any  rational  being  exists  as  an  end  in  himself, 
not  merely  as  a  means  to  be  arbitrarily  used  by  this  or  that 
will,  a  secondary  form  of  the  categorical  imperative  is  :  "  So 
act  as  to  treat  humanity,  whether  in  thine  own  person  or  in 
that  of  another,  in  every  case  as  an  end  withal,  never  as 
means  only."  2  In  renouncing  all  individual  interests  the 
will  becomes  universally  legislative  and  thus  acquires  for  hu- 
manity the  highest  possible  dignity.  The  moral  will  is  sub- 
ject only  to  the  laws  of  which  it  can  regard  itself  as  author. 
"Looking  back  now,"  says  Kant,  "upon  all  previous  at- 
tempts to  discover  the  principles  of  morality,  we  need  not 
wonder  why  they  all  failed.  It  was  seen  that  man  was  bound 
to  law  by  duty,  but  it  was  not  observed  that  the  laws  to  which 
he  is  subject  are  only  those  of  his  own  giving,  though  at  the 
same  time  they  are  universal,  and  that  he  is  only  bound  to 
act  in  conformity  with  his  own  will ;   a  will,  however,  which 

[^  is  designed  by  nature  to  give  universal  laws."  ^ 

In  the  present  century  the  tendency  of  ethics  on  the 
whole  has  been  away  from  the  jural  type.  The  phrase 
'Moral  Law  '  however,  has  continued  to  occupy  a  prominent 
place  in  ethical  discussions.  The  popular  conception  of  mo- 
rality as  the  command  of  the  deity,  the  long  and  honorable 
history  of  the  term  in  philosophy,  the  majesty  of  the  civil 
law,  the  appropriateness  of  the  term  to  express  the  uncondi- 
tioned necessity  of  moral  duties — all  of  these  circumstances 
combine  to  keep  the  term  in  use  even  though  it  is  regarded 

1  Kritik  der  praJttischen  Vernunft,  Bk.  I.,  Ch.  I.,  §  VII.,  trans,  p.  119. 

2  Grujidlegung  zur  Metaphysik  der  Sitten,  trans,  p.  47. 

3  Ibid.  p.  51. 


THE    CONCEPT    OF    LAW    IN    ETHICS.  37 

as  only  a  metaphor.  Perhaps,  too,  the  respect  for  the  word 
law,  arising  from  its  use  in  the  physical  sciences,  has  made 
moralists  who  retain  little  of  the  old  jural  sense  of  the  term  , 
still  cling  to  the  word.  **  Metaphors  from  law  and  metaphors 
from  war,"  says  Bagehot,  "  make  most  of  our  current  moral  ^ 
phrases,  and  a  nice  examination  would  easily  explain  that  both 
rather  vitiate  what  both  often  illustrate."  i  The  'metaphors 
from  law,'  however,  will  doubtless  long  continue  to  furnish 
the  most  effective  means  for  popular  instruction  in  morals, 
and  if  the  different  senses  of  the  term  be  carefully  distin- 
guished perhaps  no  more  useful  term  can  be  found  for  the 
•ethical  scientist. 

I  Bagehot,  Physics  and  Politics^  p.  79. 


38  THE    CONCEPT    OF    LAW    IN    ETHICS. 


CHAPTER  IV 


The   Moral   Law. 

§  14.  In  all  the  sciences  of  to-day  the  term  law  plays  an 
important  part.  While  the  one  term  is  used  with  equal  free- 
dom in  all,  the  corresponding  concept  takes  on  almost  as 
many  different  forms  as  there  are  different  sciences.  We 
hear  continually  such  expressions  as  laws  of  chemistry,  laws 
of  motion,  laws  of  logic,  laws  of  poetry,  laws  of  the  state, 
laws  of  etiquette,  etc.  Among  all  these  various  uses  of  the 
term  we  may  distinguish  two  typical  forms  of  the  concept  : 
(i)  law  in  jurisprudence,  (2)  law  in  physics.  The  first  is  the 
original  form  of  the  concept,  the  second  a  derived  form.  All 
the  other  uses  of  the  term  are  varieties  of  one  or  the  other 
of  these  fundamental  species  of  the  concept,  or  else  more  or 
less  confused  combinations  of  the  two. 

"The  term  law,"  says  Zeller,  "in  all  languages  meant 
originally  a  rule  of  conduct  established  by  some  person, 
whether  human  or  divine,  with  regard  to  the  conduct  of  men  ; 
a  law  is  what  the  community  requires  or  the  deity  com- 
mands." ^  It  is  precisely  in  this  same  sense  that  we  use  the 
term  to-day  in  jurisprudence.  Holland  gives  the  definition  : 
"A  law  is  a  general  rule  of  external  human  action  enforced 
by  a  sovereign  political  authority."  2  This  form  of  the  con- 
cept involves  three  essential  elements.  To  see  these  clearly 
we  may  state  the  definition  thus  :  a  law  is  (i)  a  rule  of  con- 
duct which  (2)  a  will  in  authority  imposes  upon  (3)  a  subject 
will. 

1  Zeller,  Vortrage  und  Abhandlungen,  j  Satnm.  p.  i8g. 

2  Holland,  Elements  of  yurtsprudence,  p.  37. 


THE    CONCEPT    OF    LAW    IN    ETHICS.  39 

(i)  The  essence  of  this  first  element,  rule  of  conduct,  is 
uniformity  in  action.  Without  prescribed  rules  one  man  may 
act  in  one  way,  another  in  another,  or  the  same  man  in  differ- 
ent ways  at  different  times.  Wherever  uniformity  is  ob- 
served in  the  conduct  of  men,  it  is  abscribed  to  laws  of  some 
kind,  as  the  laws  of  the  state,  laws  of  custom,  laws  of  na- 
ture, etc.  Thus  the  law  is  an  expression  of  uniformity  in  ac- 
tion. (2)  This  rule  of  action  is  always  thought  of  as  estab- 
lished by  some  power  in  authority.  Hence  as  a  second  el- 
ement we  must  recognize  the  legislative  will  (3)  The  rule 
of  action  is  laid  upon  some  person  i.  e.y  upon  a  free  will,  who 
may  or  may  not  conform  to  it.  The  freedom  of  the  subject, 
or  Xho.  possibility  of  non-conformity  is  always  contemplated  in 
this  sense  of  the  term.  This  first  typical  form  of  the  con- 
cept involves,  therefore,  these  three  essential  elements  :  uni- 
formity in  action,  a  legislative  will,  and  freedom  or  the  possi- 
bility of  non-conformity  on  the  part  of  the  subject. 

As  the  Greeks  became  better  acquainted  with  other  na- 
tions, especially  after  the  conquests  of  Alexander,  they  found 
many  of  the  same  rules  of  conduct  in  force  among  the  bar- 
barians as  among  themselves.  These  common  norms  and 
customs,  they  saw,  could  not  have  been  established  by  the 
lawgiver  of  any  one  city  or  people.  Common  to  all  men, 
they  must  have  been  established  by  a  power  having  authority 
over  all  men  in  common.  The  legislative  will  became  now 
Zeus,  Nature  or  the  divine  creative  Reason.  In  Sophocles, 
as  we  have  seen,  the  unwritten  laws  of  the  gods  are  clearly 
distinguished  from  the  written  laws  of  human  kings.  Hera- 
cleitus  connected  this  divine  law  with  the  order  of  things  in 
nature.  The  Stoics  were  the  first,  however,  to  bring  into 
general  use  the  term  law  as  applied  to  the  natural  order  of 
things.  They  believed  that  the  ultimate  cause  of  the  world 
was  not  merely  a  material  substance,  but  also  a  creative  power 
^  and  Reason.  The  natural  order  and  necessity  in  the  uni- 
verse they  explained  as  the  expression  of  the  will  of  that 
Ultimate  Reason.  They  used  the  phrase  law  of  nature  in- 
differently for  the  order  in  the  physical  world  and  for  the 
principles  of  moral  conduct.     In  the  Stoic  concept  of  law  of 


40  THE    CONCEPT    OF    LAW    IN    ETHICS. 

nature  as  applied  to  the  external  world  we  find  the  element 
of  uniformity  of  action  as  in  the  first  form,  the  legislative 
will  broadened  into  a  universal  Reason,  but  the  third  element 
that  of  freedom,  completely  vanishes.  In  this  case  the  law 
is  not  imposed  upon  persons  who  may  or  may  not  obey,  but 
upon  inert  matter  which  always  conforms  to  the  law  neces- 
sarily. 

The  elimination  of  the  second  element  converts  the  Stoic 
concept  into  the  modern  scientific  idea  of  natural  law.  The 
legislative  will  as  well  as  the  possibility  of  non-conformity 
has  disappeared  and  we  have  left  only  the  first  element — ^uni- 
formity in  action.  The  metaphysical  philosopher  may  still 
resort  to  an  ultimate  rational  will  to  explain  the  order  in  na- 
ture, but  the  physicist  as  such  uses  the  term  law  without  any 
implications  of  a  lawgiver.  To  him  the  law  is  the  expression 
for  the  mode  of  action  in  things,  not  for  something  outside 
of  things.  It  is  simply  the  statement  of  the  fact  of  a  cer- 
tain uniformity  in  nature.  The  general  form  of  a  law  in 
physics  is :  under  certain  conditions,  certain  events  always 
happen.  This  unexceptional  validity  of  the  physical  law  is 
its  characteristic  mark.  Of  the  three  essential  elements" 
in  the  jural  sense  of  the  term  we  find  only  one  in  the 
physical  law,  viz.,  uniformity  in  action. 

What  now  is  the  relation  of    the  concept   moral  law  to 
these  two  typical  forms  of  law } 
y  The  moral  laws  are  those  rules  of  conduct  which  we  feel 
ourselves  under  obligation  to  obey.     Briefly  put,  the  moral 
law  is  the  code  of  dutiesy   In  this  general  formal  definition 
all  moralists  would  agtee,  I  think.     It  is  in  regard  to  the 
source,  end,  scope,  and  content  of  the  code  of  duties  that 
the  schools  differ.     According  to  the  Hebraic  or  the  theo- 
/^logical  conception  of  morality  these  norms  of  conduct  are 
/     laid    upon  man   by  the    divine   lawgiver.     In  this  case  the 
moral  law  is  of  precisely  the  same  type  as  civil  law.  a  The 
three  elements  of  this  type  are  all  present — the.^prescribed 
^uniformity  of  con'duct,  the  legislative  will,   and  the  subject 
will.i    Or,  if  with  Hobbes  we  regard  the  state,  or,  with  cer- 
tain recent  writers,  society  or  humanity  as  the  source  of  the 


THE    CONCEPT    OF    LAW    IN    ETHICS.  4 1 

law,  we  find  the  same  essential  agreement  with  the  jural 
form  of  the  concept. 

But,  as  Kant  has  so  well  shown,  any  command  which  is 
put  upon  us  by  an  external  will  can  have  of  itself  only  the 
force  of  legality.  It  acquires  the  force  of  morality,  obedi- 
dience  to  it  became  a  duty  and  not  merely  a  matter  of  pru- 
dence, only  as  we  bind  it  upon  ourselves  and  it  is  brought 
by  self  under  the  feeling  of  obligation.  (No  imperatives  of 
parents,  the  state,  or  even  of  divine  revelation,  could  com- 
mand anything  but  a  prudential,  legal  conformity,  unless 
at  the  samejimeth£ya£pe^^^^^ 

Such  externally  imposed  imperatives  may  well  be  the  ratio 
cognoscendi  ;  but  never  of  themselves  the  ratio  essendi  of  the 
moral  law.  *'It  is  the  very  essence  of  moral  duty  to  be  im- 
posed by  a  man  upon  himself.  .  .  .  What  we  primarily 
understand  by  'law'  is  some  sort  of  command  given  by  a 
superior  in  power  to  one  whom  he  is  able  to  punish  for 
disobedience  ;  whereas  it  is  the  essence  of  moral  *  law '  that 
it  is  a  rule  which  a  man  imposes  on  himself,  and  from  another 
motive  than  the  fear  of  punishment.  .  .  .  The  spirit  of 
man  sets  before  him  the  ideal  of  a  perfect  life,  and  pro- 
nounces obedience  to  the  positive  law  to  be  necessary  to  its 
realization."^  Thus  in  rnorality  the  legislative  will  is  one 
with  the  subject  will.  But  the  concept  of  law  still  remains 
of  the  same  general  type.  We  still  have  the  three  elements 
of  law  as  in  jurisprudence. 

While  the  term  law  in  ethics  is  generally  used  as  above 
described  in  the  jural  sense,  we  should  not  forget  the  exist- 
ence of  laws  in  the  physical  sense.  In  moral  phenomena 
we  find  certain  uniformities  of  sequence  as  well  as  in  physi- 
cal phenomena.  Conduct  and  character  are  causally  related, 
and  their  relation  it  would  seem  possible  to  express  by  gen- 
eral formulas,  i.  e.,  by  laws.  The  general  form  of  such  a 
natural  law  of  ethics  is  :  such  and  such  conduct  produces  such 
and  such  states  of  consciousness  and  such  and  such  charac- 
ter. Selfishness  brings  unhappiness — violation  of  duty  is 
followed  by  stings  of  conscience — lying  degrades  character ; 

I  T.  H.  Green,  Pf^egomena  to  Ethics,  p.  354. 


42  THE    CONCEPT    OF    LAW    IN    ETHICS. 

these  are  examples  of  laws  in  the  moral  sphere  in  just  the 
same  sense  and  of  just  the  same  validity  and  necessity  as 
the  facts  that  ice  melts  at  32  degrees  and  that  a  falling  body 
increases  in  velocity  as  the  square  of  the  distance.  Spencer 
says  :  **  I  conceive  it  to  be  the  business  of  Moral  Science 
to  deduce  from  the  laws  of  life  and  the  conditions  of  existence 
what  kinds  of  action  necessarily  tend  to  produce  happiness, 
and  what  kinds  to  produce  unhappiness.  Having  done  this, 
its  deductions  are  to  be  recognized  as  laws  of  conduct."^ 
Now  without  making  this  the  whole  business  of  ethics,  it  is 
certainly  a  part  of  its  work  to  discover  the  'laws  of  conduct/ 
We  may  not  believe  as  Mr.  Spencer  seems  to,  that  these 
laws  can  be  deduced  from  biology.  We  may  have  to  dis- 
cover them  empirically  rather  than  deductively.  We  may, 
too,  be  more  interested  to  know  what  sort  of  conduct  makes 
for  perfection  of  character  or  for  the  *  health  of  the  social 
tissue,'  but  at  any  rate  besides  investigating  ends  and 
motives  ethics  must  formulate  the  laws  of  conduct  by  which 
these  ends  if  chosen  may  be  attained.  In  logic  and  aesthet- 
ics, and  indeed  in  all  the  practical  sciences,  we  find  this 
same  double  use  of  the  term  law.  The  laws  of  logic  as  state- 
ments of  the  mind's  procedure  in  thinking  are  necessary  se- 
quences of  the  same  type  as  physical  laws.  But  when  from 
these  laws  of  thought  we  form  rules  of  argument  we  have 
imperatives  which  we  bind  upon  ourselves  in  view  of  certain 
ends,  i.  e.,  laws  in  the  jural  sense  of  the  concept.  So,  too, 
in  aesthetics  from  the  principles  of  beauty  we  derive  rules  of 
art,  and  use  the  term  law  indiscriminately  for  both  the  prin- 
ciples and  the  rules.  Since  these  two  widely  different  con- 
cepts are  both  expressed  by  the  one  term  law,  and  since  we 
have  laws  of  both  types  in  morals,  ethical  writers  have  often 
confused  them.  Where  the  context  does  not  make  the 
meaning  of  the  word  perfectly  clear,  ambiguity  might  be 
avoided  by  the  use  of  imperatives  for  one  sense  and  uniformi- 
ties for  the  other. 

§    15.     On  the  basis  of  this  analysis  of  the  concept  of  law 

I  Spencer,  Data  of  Ethics,  p.  57. 


THE    CONCEPT    OF    LAW    IN    ETHICS.  43 

in  ethics,  we  will  make  a  brief  examination  of  the  source, 
ends,  and  motives  of  the  moral  law. 

In  one  sense  of  the  term  the  moral  laws  as  psychical  uni- 
formities are  constitutive  principles  of  man's  being,  a  part  of 
his  very  nature.  To  ask  for  their  source  could  have  no 
other  meaning  than  to  ask  the  source  of  the  man  himself. 
The  origin  of  the  moral  principles  of  man's  nature  demands 
no  special  explanation  apart  from  that  of  the  intellectual  or 
any  other  class  of  powers  of  the  human  spirit.  To  explain 
the  origin  of  the  moral  consciousness  would  seem  to  involve 
essentially  the  same  difficulties  to  the  evolutionist,  neither 
less  nor  more,  than  to  explain  the  origin  of  the  intellectual 
consciousness,  and  should  an  evolutionary  origin  be  accepted 
it  can  no  more  invalidate  the  duties  of  the  former  than  the 
truths  of  the  latter. 

The  fundamental  source  of  the  moral  imperatives  is  these 
constitutive  principles  of  man's  moral  nature.  They  are  not 
given  to  him  from  without  but  are  the  expression  of  the 
character  of  his  inmost  being.  Not  in  these  principles  taken 
absolutely,  however,  is  the  source  of  imperatives  to  be  sought, 
but  in  them  as  related  to  the  whole  man,  and  the  man  too 
as  related  to  society  and  the  universe  in  general.  Man  is  to 
live  and  develop  the  capacities  of  the  nature  which  he  has 
and  in  the  relations  in  which  he  finds  himself.  Morality  is 
a  certain  function  of  the  relation  which  the  individual  self 
sustains  to  the  world.  This  might  be  expressed  in  a  quasi 
mathematical  formula  as  follows  : 

This  is  indeed  a  highly  complicated  ratio,  for  the  S,  the  indi- 
vidual, is  both  physical  and  spiritual  in  his  nature,  and  in  the 
W  is  included  not  only  the  physical  world  but  the  animal 
kingdom,  society  and  the  invisible,  eternal,  spiritual  reality 
of  things.  The  due  adjustment  of  this  complex  ratio,  as  far 
as  it  lies  within  our  power,  is  the  problem  of  moral  conduct. 
The  moral  law  is  the  code  of  rules  derived  from  the  study  of 
this  relationship  and  imposed  upon  the  individual  by  his  own 
sense  of  duty. 


44  THE    CONCEPT    OF    LAW    IN    ETHICS. 

By  far  the  largest  and  most  important  part  of  this  prob- 
lem, the  part  most  fully  in  our  own  power,  consists  in  the 
adjustment  of  the  individual  to  society.  The  historical  de- 
velopment of  this  adjustment  has  furnished  us  with  the 
greater  part  of  our  present  moral  code.  Lawgivers  and 
moral  reformers  have  doubtless  had  .a  large  influence  upon 
the  evolution  of  moral  norms.  But  the  continual  interaction 
of  man  upon  man  and  the  attitude  of  rulers  and  the  state 
toward  the  individual,  in  short  society  has  been  the  control- 
ing  element  in  establishing  the  moral  laws  that  are  generally 
recognized.  ^Our  actual  code  of  morals  has  not  been  given 
by  revelation,  discovered  by  intuition,  or  deduced  by  a  con- 
scious study  of  man's  relation  to  the  world,  but  it  is  the 
product  of  the  historical  interaction  of  individuals  and  so- 
ciety upon  one  another.  Had  man  not  come  into  social  re- 
lations the  sense  of  duty  would  probably  have  lain  dormant 
in  the  human  breast.  It  is  society  that  has  actualized  and 
brought  to  light  the  latent  morality  of  mankind.  In  man's 
moral  nature  as  developed  by  society,  therefore,  we  find  the 
source  of  the  moral  law.J  'Nor  is  the  law  any  the  less  binding 
because  it  is  the  product  of  evolution.  As  has  often  been 
remarked,  to  explain  the  origin  of  a  thing  is  not  to  explain  it 
away.  The  keenest  analysis  leaves  the  sense  of  duty,  the 
feeling  of  obligation,  as  an  ultimate,  irreducable  fact.  Such 
being  the  case  we  must  admit  that  the  moral  imperatives 
are  at  bottom  not  hypothetical  but  categorical  in  fonn.  But 
while  we  find  Kant  and  the  intuitionists  right  as  to  the  form 
of  the  law,  the  empiricists  are, equally  right  as  to  the  con- 
tent. Men  of  moral  sanity  feel  within  themselves  the  cate- 
gorical imperative  to  do  duty,  or,  stated  one  degree  less  ab- 
stractly, to  will  the  good.  But  as  to  what  is  duty,  or  what  is 
the  good  to  be  willed,  only  experience  can  tell  us. 

§  1 6.  Accepting  the  command — Will  the  good  —  as  the 
simplest  and  most  comprehensive  statement  of  the  moral 
law,  we  must  at  once  raise  the  questions,  Whose  good  and 
which  good .''  The  end  of  the  moral  law  must  accordingly 
be   examined   from  these  two  standpoints :    What  are  the 


THE    CONCEPT    OF    LAW    IN    ETHICS.  45 

goods  aimed  at  and  who  are  to  receive  these  goods?     We 
will  consider  the  latter  question  first. 

Good  is  a  relative  term  and  has  no  meaning  apart  from 
some  sentient  being  who  is  to  experience  it.  Who,  then,  is 
the  sentient  being  whose  good  is  aimed  at  by  the  moral  law  ? 
Or,  to  use  a  German  phrase,  who  is  the  end-subject  {zweck- 
subject)  of  morality }  There  are  three  possible  answers  to 
this  question,  animals,  men,  God.  We  cannot  admit  the  last 
as  a  proper  end-subject  of  our  morality.  Accepting  the  full- 
est theistic  conception  of  God,  we  cannot  suppose  him  to  be 
wanting  in  anything  which  our  acts  can  supply.  Regarding 
him  as  the  lawgiver  and  as  most  sympathetically  interested  in 
us  as  his  children,  still  he  is  not  the  end-subject  of  our  conduct. 
In  saying  this  we  would  not  be  understood  as  in  any  degree  be- 
littling the  importance  of  religious  duties.  These  duties  are 
a  part  of  the  objective  end  of  the  moral  law,  but  they  are 
due  to  society  and  to  ourselves  as  spiritual  beings,  rather 
than  to  God  as  their  end-subject.  We  take  the  medicine  that 
the  physician  prescribes  not  for  his  sake,  but  for  the  sake  of 
our  own  health. 

Are  animals  end-subjects  of  our  moral  acts.?  Yes,  in  so 
far  as  they  are  susceptible  to  weal  at  our  hands.  Modern  ab- 
horrence of  cruelty  to  animals  may  be  explained  by  the  be- 
lief that  one  who  is  cruel  to  dogs  and  horses  will  also  be 
cruel  to  men  in  his  power.  Were  it  not,  however,  that  the 
horse  is  sentient  and  therefore  so  far  deserving  of  our  sym- 
pathy, beating  his  horse  would  not  beget  cruelty  in  his 
driver.  We  may  justly  fear  that  the  boy  who  has  no  regard 
for  the  pains  of  the  pony  he  rides  will  grow  up  devoid  of  sym- 
pathy for  the  sufferings  of  his  fellow  men.  However  hard 
the  boy  may  lash  his  whip  about  a  post,  we  do  not  think 
that  he  is  thereby  acquiring  the  habit  of  cruelty.  The  pony 
is  sentient  and  the  post  is  not.  The  boy  who  beats  his  pony 
is  acquiring  the  habit  of  cruelty  because  he  is  violating  the 
duty  to  further  the  good  of  sentient  beings.  The  degree  to 
which  any  being  is  susceptible  to  weal  at  our  hands  deter- 
mines the  extent  of  our  duty  to  it.  The  father  of  a  family 
has  not  the  same  duty  to  the  babe  in  arms  as  to  the  son  of 


4^  THE    CONCEPT    OF    LAW    IN    ETHICS. 

ten  or  to  the  daughter  of  twenty.  In  the  case  of  the  lower 
animals  our  duty  is  of  course  very  small.  A  proper  satisfac- 
tion of  their  physical  needs,  infliction  of  no  unnecessary  pain, 
and  in  the  case  of  certain  of  the  finest  breeds  of  domestic 
animals  a  gentleness  and  kindliness  of  tone  in  their  pres- 
ence, make  up  perhaps  the  sum  total  of  our  duties  to  ani- 
mals. A  recognition  of  duties  to  animals  in  so  far  as  they 
are  susceptible  to  weal  does  not,  as  Ihering,  for  example, 
maintains,  preclude  the  slaughter  of  animals  for  food  or  vivi- 
section in  the  cause  of  science.  We  do  not  hesitate  to  justify 
the  infliction  of  pain  on  our  own  bodies  for  a  greater  good. 
If  life  or  health  demand  it,  we  suffer  any  surgical  operation, 
however  painful,  and  for  the  greater  good  to  man  we  are 
justified  in  inflicting  pain  upon  and  taking  the  lives  of  lower 
animals. 

While  we  thus  regard  animals  as  true  end-subjects  of  our 
duties  as  far  as  they  are  susceptible  to  weal  at  our  hands, 
still  this  forms  scarcely  more  than  an  infinitesimal  part  of  the 
demands  of  the  moral  law.  The  proper  end-subject  of  the 
great  mass  of  our  moral  acts  is  man.  In  this  connection  we 
may  view  man  in  three  ways — self,  other  in'Hividuals,  and  so- 
ciety as  an  organized  unit.  Which  of  these,  or  in  what  re- 
spect is  each  of  these  a  true  end-subject  of  the  moral  law  } 

Since  duty  commands  man  to  will  the  good  and  he  is  him- 
self susceptible  to  weal,  his  own  good  must  surely  fall  under 
the  imperatives  of  the  law.  He  is  thus  himself  a  true  end- 
subject  of  his  own  moral  conduct.  As  a  large  part  of  the 
needs  of  the  individual  are  provided  for  by  his  egoistic  im- 
pulses, comparatively  little  is  left  to  the  moral  law  or  con- 
scious feeling  of  duty.  Yet  this  little  is  of  the  highest  im- 
portance. It  is  the  sense  of  duty  to  self  which  commands 
us  often  in  spite  of  all  egoistic  impulses  and  inclinations,  to 
seek  the  highest  good,  the  lasting  or  the  spiritual  good,  in 
place  of  the  lower,  temporary,  or  sensuous  goods.  It  is  self- 
respect  which  enforces  the  duty  of  the  present  self  to  the 
future  self  and  of  the  lower  self  to  the  higher  self.  The 
sublimity  of  the  moral  law  and  the  dignity  of  character  are 
manifested  quite  as  clearly  in  the  victory  of  the  higher  over 


THE    CONCEPT    OF    LAW    IN    ETHICS.  47 

the  lower  nature  in  cases  concerning  the  individual  himself 
alone  as  in  the  more  public  examples  of  the  sacrifice  of  self 
to  the  good  of  others.  Our  own  immediate  susceptibility  to 
the  higher  forms  of  good  is  a  sufficient  justification  of  duties 
to  ourselves.  It  seems  a  forced,  circuitous,  and  altogether 
superfluous  explanation  to  ground  such  duties  on  our  rela- 
tion to  society. 

Bearing  in  mind  our  criterion  of  susceptibility  to  weal 
and  the  fact  that  the  egoistic  impulses  are  generally  pressing 
us  on  with  a  much  greater  intensity  than  the  sympathetic, 
we  find  accordingly  the  principal  end  of  morality  in  the  wel- 
fare of  our  fellow  men.  The  great  majority  of  our  moral  im- 
peratives have  others  as  end-subjects.  So  overwhelmingly 
large  is  this  portion  of  the  ethical  code  that  it  is  often 
thought  to  include  the  entire  content  of  the  moral  law.  But 
as  we  have  already  seen,  it  would  seem  necessary  to  reserve 
to  self  and  even  to  the  lower  animals  some  place  within  the 
sacred  precincts  of  Duty's  temple. 

Now  are  our  duties  to  others  due  to  them  as  individuals 
or  as  members  of  society  ?  Only  a  being  who  is  susceptible 
to  weal,  who  has  the  knowledge  of  good  and  evil,  only  a  con- 
sciousness can  be  of  intrinsic  moral  worth  or  be  an  end -sub- 
ject of  the  moral  law.  The  social  organism  is  not  a  sentient 
being,  a  consciousness.  It  is  only  its  members  that  possess 
real  consciousness.  Society  is  an  interrelated,  interacting 
aggregate  of  individuals.  As  far  as  they  have  common  aims 
and  purposes,  they  can  seek  them  through  society  as  an 
organized  body.  But  when  we  apply  the  term  organism  to 
society  we  must  recognize  the  essential  difference  between 
the  social  organism  and  the  organism  of  the  human  body. 
Society  is  susceptible  to  weal  only  in  its  members ;  the  hu- 
man body  not  in  its  members  but  only  as  a  whole.  In  the 
one  case  the  whole  is  a  means,  the  members  the  end  ;  in  the 
other  the  members  are  the  means  and  the  whole  is  the  end. 
The  individual  consciousness  is  the  only  real  human  conscious- 
ness of  which  we  have  any  knowledge.  Such  an  expression  as 
the  national  consciousness  may  be  highly  useful  as  a  figure  of 
speech.     The  personification  of  the  nation  or  of  society  is  con- 


48  THE    CONCEPT    OF    LAW    IN    ETHICS. 

venient  in  discourse.  But  we  must  not  be  misled  by  such  a 
figure  into  supposing  that  the  nation  is  a  person  with  feel- 
ings, intellect,  and  will.  It  is  only  individuals,  after  all,  who 
have  feelings,  who  are  susceptible  to  weal.  Only  where 
there  is  an  autocrat  who  arrogates  to  himself  to  be  the  state 
could  there  be  any  meaning  in  calling  the  state  an  end-sub- 
ject. 

Individualism  has  erred  in  regarding  the  single  man  in  a 
'state  of  nature  '  as  complete  in  himself.  Apart  from  latent 
social  capacities  and  needs  such  a  being  would  be  only  an 
animal  and  not  worthy  of  the  name  man  at  all.  Indeed  the 
lone  individual  is  only  an  abstraction  ;  we  know  men  only 
in  society.  Man  as  man  is  a  social  being,  ^cooy  TzoXixixbv, 
as  Aristotle  long  ago  taught.  It  is  only  in  interrelation  with 
his  fellows  that  the  distinctively  human  qualities  are  capable 
of  development  at  all.  Man  is  not  possessed  of  innumerable 
rights  in  a  state  of  nature  which  he  agrees  willingly  or  un- 
willingly to  abrogate  in  order  to  enjoy  certain  social  advan- 
tages. It  is  only  in  society  that  he  acquires  any  'rights'  or 
rises  to  a  place  of  moral  worth.  Powers  and  capacities  latent 
in  the  natural  or  isolated  man,  were  there  any  such,  are 
actualized  in  society.  To  live  is  to  be  in  interactive  rela- 
tions,—  the  broader  and  deeper  the  relations  the  broader 
and  deeper  the  life.  For  self-realization  or  living  the  com- 
pletest  possible  life  society  is  intrinsically  necessary.  This 
is  the  truth  that  has  led  Wundt  and  Ihering,  conscious  of 
the  defects  of  the  old  individualism,  to  make  society  the  end 
and  aim  of  all  morality.  Society  is  not  the  end-subject. 
The  individual  is  the  only  possible  end-subject.  But  society 
is  the  absolutely  indespensible  means  for  this  end.  Man  is 
in  his  very  nature  a  social  being.  His  welfare  can  be  wrought 
out  only  in  company  with  his  fellow  men.  But  ultimately, 
after  recognizing  to  the  full  the  unique  and  indispensable 
value  of  society  to  mankind,  we  must  say  that  society  exists 
for  man  and  not  man  for  society.  Society  is  the  means,  in- 
dividuals are  ends.  Only  persons  susceptible  to  weal  and 
capable  of  character  possess  intrinsic  moral  worth. 

The  discussion  of  the  ends  of  the  moral  law,   as  already 


THE    CONCEPT    OF    LAW    IN    ETHICS.  49 

stated,  involves  not  only  the  question  whose  good,  but  also 
what  goods.  Besides  the  end-subjects  of ,  the  law  we  must 
consider  the  objective  ends  of  the  law.  These  objective 
ends  must  correspond  to  the  nature  of  the  end-subjects.  In 
order  to  determine  the  content  of  our  duties  to  self  and  to 
others,  we  have  only  to  inquire :  What  are  the  kinds  of 
goods  to  which  man  is  susceptible  ?  What  are  the  needs  of 
our  nature  whose  satisfaction  is  necessary  that  we  may  at- 
tain to  the  full  perfection  of  our  manhood  }  These  needs 
may  be  summed  up  under  four  general  classes  :  physical,  in- 
tellectual, aesthetic,  and  religious.  History  has  already  de- 
veloped for  us  the  formulas  and  institutions  by  which  we  can 
attain  to  an  approximate  satisfaction  of  these  wants.  Our 
primary  duty  therefore  is  to  obey  the  moral  code  and  further 
the  institutions  established  by  society.  Since  this  code  and 
these  institutions  are  the  product  of  evolution,  we  may  trust 
that  they  will  be  subject  to  a  still  higher  development  in  the 
future.  An  important  secondary  duty,  accordingly,  is  to 
aid  in  this  development. 

§  17.  After  what  has  already  been  said  of  the  nature  and 
ends  of  the  moral  law,  little  need  be  added  about  the  motive. 
For  a  rational  being  ends  and  motives  must  correspond. 
We  intuitively  recognize  that  the  good  is  worthy  to  be 
chosen  and  that  we  ought  to  choose  it.  This  deepest  of  all 
realities  of  our  nature,  the  feeling  of  moral  obligation,  is  the 
ultimate  motive.  This  imperative  within  us  calling  upon  us 
to  choose  the  good  of  others  before  our  own,  is  for  the 
most  part  justified  by  our  peculiar  dependence  upon  the  so- 
ciety of  others.  That  the  imperative  sometimes  overrides 
the  will  to  live  and  demands  the  sacrifice  of  life  itself  to 
others  is  indeed  a  moral  antinomy.  Only  the  postulate  of  a 
future  life,  in  which  the  individual  may  continue  his  self- 
realization  in  the  society  of  those  other  selves  whose  realiza- 
tion he  has  aided,  seems  to  offer  any  solution.  That  our 
moral  nature  should  demand  of  us  an  absolute  self-sacrifice 
seems  impossible  to  believe. 


50  THE    CONCEPT    OF    LAW    IN    ETHICS. 

BIBLIOGRAPHY. 


Alexander,  Moral  Order  and  Progress. 

Andrews,  Institutes  of  General  History ;    The  Social  Body 

(in  Andover  Review,  October,  1890). 

Aquinas,  Sunima  Theologica. 

Aristotle,  Ethics  ;    Rhetoric. 

Bagehot,  Physics  and  Politics. 

De  Coulanges,  The  Ancient  City. 

Erdmann,  History  of  Philosophy. 

Eucken,  The  Fundamental  Concepts  of  Modern  Philosophic 
Thought. 

Green,  Prolegomena  to  Ethics. 

Grote,  History  of  Greece. 

Hobbes,  Leviathaji ;  Elements  of  Law. 

Hoffding,  Ethik ;  Law  of  Relativity  of  Ethics  (in  Interna- 
tional Journal  of  Ethics,  October,  1890). 

Holland,  Elements  of  Jurisprudence . 

Hume,  Treatise  on  Human  Nature. 

Hunter,  Roman  Law. 

Ihering,  Zweck  im  Recht,  Vol.  II. 

Jodl,  Geschichte  der  Ethik. 

Kant,  Grundlegung  zur  Metaphysik  der  Sitten ;  Kritik  der 
praktischen  Vernunft ;  (Abbott's  translation  of  Kant's  ethical 
works). 

Locke,  Essay  Coficerning  Human  Understanding. 

Maine,  Early  History  of  Institutions ;  Early  Law  and  Cus- 
tom;  Ancient  Lazv. 

Morey,  Outlines  of  Roman  Law. 

Muirhead,  Law  of  Rome. 

Max  Miiller,  Origin  and  Growth  of  Religion. 

Paley,  Principles  of  Moral  and  Political  Philosophy. 

Robinson,  Principles  arid  Practice  of  Morality. 

Riimelin,  Reden  und  Aufsdtze :  ueber  Gesetze  der  Geschichte^ 
Eine  Defenition  des  Rechts. 

Schmidt,  Die  Ethik  der  Alten  Griechen. 


THE    CONCEPT    OF    LAW    IN    ETHICS.  5 1 

Schurman,  Kantian  Ethics  and  the  Ethics  of  Evolution  ;   The 

Ethical  Import  of  Darwinism. 
Sidgwick,  Methods  of  Ethics  ;  History  of  Ethics. 
Stephen,  Science  of  Ethics. 
Spencer,  Data  of  Ethics'. 
Sophocles,  Antigone, 
Wundt,  Ethik. 
Zeller,    Vortrdge  und  Abhandugen,  3   Samml.   ueber  Begriff 

and  Begriindung  der  Sittlichen  Gesetze  ;  History  of  Greek 

Philosophy, 
Ziegler,  Geschichte  der  Ethik. 


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